Ake v. Oklahoma Brief for the Petitioner

    *

*

. *-*/ V  ' IN THE ' ' .
Su p re m e  C o u rt o t tfje ®ntte& S ta te s

Oc t o b e r  T e r m , 1983 .• . ~ }*•,. . . • • . * .<• t, .... •

Glen Burton Ake, P etitio n er,

State  of Oklahoma, Respondent,

On Writ O f Certiorari T o The r 
Oklahoma Court O f Criminal Appeals

•;v BR IEF FOR THE. PETITIONER

Arthur B. Spitzer 
Counsel of Record'

J jy  . Washington; ILCL 200G8
(2G2J.6«-10!76; ; V-.v.' '



1A
fc

.

1

QUESTIONS PRESENTED
1. When an indigent defendant’s sanity at the time of the 

offense is seriously in issue, can a State constitutionally refuse 
to provide any opportunity whatsoever for him to obtain the 
psychiatric assistance and examination necessary to prepare 
and establish his insanity defense?

2. When a State seeks in a capital case to prove the 
aggravating circumstance of future dangerousness through 
psychiatric testimony, can it constitutionally refuse to provide 
an indigent defendant with psychiatric assistance to rebut that 
testimony and to develop and present mitigating evidence?

3. Can a State constitutionally put a defendant on trial, 
without making any inquiry into his competency, when he is 
involuntarily receiving psychoactive medication that renders 
him unable to participate in his defense and prejudices his 
appearance before the jury?



“V

ii

PARTIES TO THE PROCEEDING
The only parties to this proceeding, in this Court or below, 
e the petitioner (defendant below) Glen Burton Ake and the 
spondent State of Oklahoma.
Steven Keith Hatch was the defendant in a consolidated case 
ising out of the same events, but was ultimately tried sepa- 
tely.

iii

TABLE OF CONTENTS
Page

Decisions Below .................................................................. 1
Jurisdiction............................................................................
Constitutional and Statutory Provisions Involved........  1
Statement of the Case ........................................................
Summary of Argument ......................................................  15
Argument:

I. When an indigent defendant’s sanity at the time of 
the offense is seriously in issue, the State may not 
deny him the means to establish his insanity defense 18

A. The Constitution requires that indigent defend­
ants be provided with reasonably necessary ex­
pert assistance ....................................................

B. An expert examination of petitioner’s mental
condition at the time of the offense was reason­
ably necessary in this case ............................. 28

II. In a capital case, the State may not deny an indigent
defendant the means of presenting evidence in 
mitigation of punishment and in rebuttal of the 
State’s evidence of aggravating circumstances . . .  37

A. An indigent defendant facing the death penalty
is entitled to reasonably necessary expert as­
sistance to prepare and present evidence in his 
favor at the sentencing hearing ...................... 39

B. Where the State uses psychiatric testimony to
establish the aggravating circumstance of pre­
dictable future violence, it may not deny an 
indigent defendant psychiatric assistance to re­
but that testimony ............................................ 41

III. Petitioner’s drugged condition during trial deprived 
him of the ability to assist counsel and prejudiced him
in the eyes of the ju ry ................................................ 42

A. The trial court failed to inquire into petitioner’s
competency when such an inquiry was con­
stitutionally required ........................................ 44

B. Petitioner’s competency to stand trial cannot be
sustained on this record....................................  45



■v

iv

Table of Contents Continued
Page

C. The side-effects of the drug administered to 
petitioner prejudiced him before the jury . . .  46

Conclusion ............................................................................ 50
Appendix .............................................................................. la

v

TABLE OF AUTHORITIES
Cases: pag
Addington v. Texas, 441 U.S. 418 (1979)....................  32, 3
Ake v. State, 663 P.2d 1 (Okla. Crim. App.

1983) ........................................................ 10, 11, 13, 29, 4
Barefoot v. Estelle, 103 S.Ct. 3383 (1983)..........  16, 38, 4
Beavers v. Balkcom, 636 F.2d 114 (5th Cir. 1981) ___ 3
Betts v. Brady, 316 U.S. 455 (1942)................................  3
Bills v. State, 585 P.2d 1366 (Okla. Crim. App. 1978) . 3
Blake v. Zant, 513 F.Supp. 772 (S.D. Ga. 1981k affd in 

part and rev'd in part, sub nom. Burger v. Zant, 718 
F.2d 979 (11th Cir. 1983), vacated and. remanded on 
other grounds, 52 U.S.L.W. 3860 (U.S. May 29, 
1984) ...................................................................... 3 .

Blocker v. United States, 288 F.2d 853 (D.C. Cir. 1961) 3
Bounds v. Smith, 430 U.S. 817 (1977) ........................  26, 2'
Brinkley v. United States, 498 F.2d 505 (8th Cir. 1974) 3'
Brinks v. Alabama, 465 F.2d 446 (5th Cir. 1972), cert, 

denied, 409 U.S. 1130 (1973) .................................... 3(
Burger v. Zant, 718 F.2d 979 (11th Cir. 1983), vacated 

and remanded on other grounds, 52 U.S.L.W. 3860 
(U.S. May 29, 1984) ................................................ 24, 3̂

Bush v. McCollum, 231 F.Supp. 560 (N.D. Tex. 1964), 
affd per curtain, 344 F.2d 672 (5th Cir.
1965).................................................................... 21, 33, 34

Bush v. State, 172 Tex. Crim. 54, 353 S.W.2d 855 (1962), 
rev’d sub nom. Bush v. Texas, 372 U.S. 586 (1963) 34

Bush v. Texas, 372 U.S. 586 (1963) ................................ 34
Chaffin v. Stynchcombe, 412 U.S. 17 (1973) ................  49
Christian v. United States, 398 F.2d 517 (10th Cir. 1968) 24
Commonwealth v. Bolduc, 10 Mass. App. 634, 411 

N.E.2d 483 (1980).......................................................  24
Commonwealth v. Phelan, 427 Pa. 265, 234 A.2d 540 

(1967), cert, denied, 391 U.S. 920 (1968)................  24
Cox v. State, 644 P.2d 1077 (Okla. Crim. App. 1982) .. 40
Davis v. State, 374 So.2d 1293 (Miss. 1979) ..................  26
Douglas v. California, 372 U.S. 353 (1963)........  26, 27, 41



VI

Table of Authorities Continued
Page

Doyle v. Ohio, 426 U.S. 610 (1976).................................. 29
Drope v. Missouri, 420 U.S. 162 (1975) ........  17, 35, 44, 46
Dutton v. State, 434 So.2d 853 (Ala. Crim. App. 1983) 26
Eddings v. Oklahoma, 455 U.S. 104 (1982)................  37, 38
Engle v. Isaac, 456 U.S. 107 (1982)................................ 35
Enmund v. Florida, 458 U.S. 782 (1982) ...................... 26
Estelle v. Smith, 451 U.S. 454 (1981) ............................ 30
Estelle v. Williams, 425 U.S. 501 (1976)........................ 48
Ex Parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980) 33
Gideon v. Wainwright, 372 U.S. 335 _ _ _____— —

(1963) ............“ ........................  15, 18, 26, 29, 31, 32, 36
Gregg v. Georgia, 428 U.S. 153 (1976)............................ 37
Griffin v. California, 380 U.S. 609 (1965) .................... 29
Griffin v. Illinois, 351 U.S. 12 (1956)----  15, 16, 18, 26, 27
Herring v. New York, 422 U.S. 853 (1975)....................  21
Himes v. State, 403 N.E.2d 1377 (Ind. 1980)................ 24
Hintz v. Beta, 379 F.2d 937 (5th Cir. 1967) ..................  24
In re K.K.B., 609 P.2d 747 (Okla. 1980) ........................ 47
In re Pray, 133 Vt. 253, 336 A.2d 174 (1975)................ 48
In re Roe, 383 Mass. 415, 421 N.E.2d 40 (1981)........  43, 47
In re Winship, 397 U.S. 358 (1970) ................................ 28
Jurek v. Texas, 428 U.S. 262 (1976)................................ 38
Little v. Streater, 452 U.S. 1 (1981) ................................ 27
Lockett v. Ohio, 438 U.S. 586 (1978) .............................. 42
Martin v. Commonwealth, 221 Va. 436, 271 S.E.2d 123

(1980).............................................................................
Mason v. Arizona, 504 F.2d 1345 (9th Cir. 1974), ceii.

denied, 420 U.S. 936 (1975) ............................ .........  24
Matlock v. Rose, 731 F.2d 1236 (6th Cir. 1984)............  24
McKenzie v. Osborne, 640 P.2d 368 (Mont. 1981)........  25
McMann v. Richardson, 397 U.S. 759 (1970) .............. 26

vn

Table of Authorities Continued
Pag.

Noriis v. Alabama, 294 U.S. 587 (1935)........................ 4
Pate v. Robinson, 383 U.S. 375 (1966)........................  17, 4
Pedrero v. Wainwright, 590 F.2d 1383 (5th Cir.), cert, 

denied, 444 U.S. 943 (1979) ...................................... 3
People v. Bryant, 71 Mich. App. 108, 258 N.W.2d 162 

(1977) .............................................................................. 3
People v. India, 32 N.Y.2d 230, 298 N.E.2d 65, cert, 

denied, 414 U.S. 850 (1973) ......................................  2
People v. McCrary, 190 Colo. 538, 549 P.2d 1320 (1976) 2
People v. Watson, 36 111. 2d 228, 221 N.E.2d 645

(1966) .......................................................................... 21, 2
People v. Worthy, 109 Cal. App. 3rd 514, 167 Cal. Rptr.

402 (1980) .'.................................................................... 2.
Pierce v. State, 251 Ga. 590, 308 S.E.2d 367 (1983) . . .  2-
Powell v. Alabama, 287 U.S. 45 (1932) ..  15, 19, 26, 31, 3:
Proffitt v. United States, 582 F.2d 854 (4th Cir. 1978), 

cert, denied, 447 U.S. 910 (1980) .......................... 23, 3:
Ray  v. United States, 367 F.2d 258 (8th Cir. 1966), cert, 

denied, 386 U.S. 913 (1967) ...................................... 2<
Reilly v. Baiwy, 250 N.Y. 456, 166 N.E. 165 (1929) ..  1!
Roberis v. LaVallee, 389 U.S. 40 (1967) .......................... 2<
Smith v. Estelle, 445 F. Supp. 647 (N.D. Tex. 1977), affd,

602 F.2d 694 (5th Cir. 1979), affd, 451 U.S. 454
(1981).............................................................................. 41

Solesbee v. Balkcom, 339 U.S. 9 (1950)..........................  3(
State v. Anaya, 456 A.2d 1255 (Me. 1983) ....................... 2/
State v. Campbell, 215 N.W.2d 227 (Iowa 1974)..........  2̂
State v. Chapman, 365 S.W.2d 551 (Mo. 1963) ............  21
State v. Clemons, 168 Conn. 395, 363 A.2d 33, cert, de­

nied, 423 U.S. 855 (1975) ......................................  24
State v. Cunningham, 18 Wash. App. 517, 569 P.2d 1211 

(1977).............................................................................. 24
State v. Madison, 345 So.2d 485 (La. 1977) ..................  24



Vlll

Table of Authorities Continued
Page

State v. Maryott, 6 Wash. App. 96, 492 P.2d 239 (1971) 48
State v. Murphy, 56 Wash. 2d 761, 355 P.2d 323 (1960) 48
State v. Murphy, 89 S.D. 486, 234 N.W.2d 54 (1975) . 24
State v. Olin, 103 Idaho 391, 648 P.2d 203 (1982)........  24
State v. Parton, 303 N.C. 55, 277 S.E.2d 410 (1981) .. 24
State v. Rush, 46 N.J. 399, 217 A.2d 441 (1966) ..........  24
State v. Second Judicial District Court, 85 Nev. 241, 453

P.2d 421 (1969) ............................................................ 24
State v. Taylor, 202 Kan. 202, 447 P.2d 806 (1968) . . .  24
State v. Williams, 657 S.W.2d 405 (Tenn. 1983).......... 26
State v. Wood, 648 P.2d 71 (Utah), ceH. denied, 103 S.Ct.

341 (1982) .....................................................................  40
Strickland v. Washington, No. 82-1554 (U.S. May 14,

1984).................................................................... 15, 15,
Thessen v. State, 454 P.2d 341 (Alaska 1969), ceH. denied,

396 U.S. 1029 (1970)...................................................  25
United States v. Bass, 477 F.2d 723 (9th Cir. 1973) . 33, 37 
United States v. Chavis, 486 F.2d 1290 (D.C. Cir. 1973) 33
United States v. Cronic, No. 82-660 (U.S. May 14, 1984) 21
United States v. Decoster, 624 F.2d 196 (D.C. Cir. 1976) 24
United States v. Durant, 545 F.2d 823 (2d Cir. 1976) . 37
United States v. Edwards, 488 F.2d 1154 (5th Cir. 1974) 32
United States v. Harris, 542 F.2d 1283 (7th Cir. 1976) 37
United States v. Johnson, 238 F.2d 565 (2d. Cir. 1956), 

vacated and remanded, 352 U.S. 56o (1957)..........  24
United States v. Lincoln, 542 F.2d 746 (8th Cir. 1976), 

ceH. denied, 429 U.S. 1106 (1977)......................• • • 33
United States ex rel. Robinson v. Pate, 345 k .2d 691 (7th 

Cir. 1965), affd in pad  and remanded in pad, 383
U.S. 375 (1966) ............................................................ 24

United States ex rel. Smith v. Baldi, 344 U.S. 561

cert, denied, 411 U.S. 984 (1973) .............. ........... 31, 37
United States v. Theriault, 440 F.2d1713 (5th Cir. 1971)

IX

Table of Authorities Continued
Ps

Wainwright v. Sykes, 433 U.S. 72 (1977) ......................
Watson v. Cameron, 312 F.2d 878 (D.C. Cir. 1962) . . .  
Westbrook v. Zant, 704 F.2d 1487 (11th Cir. 1983) . . .  
Williams v. Mariin, 618 F.2d 1021 (4th Cir. 1980) . . .  
Woodson v. North Carolina, 428 U.S. 280 (1976) . . .  38, 
Wright v. United States, 250 F.2d 4 (D.C. Cir. 1957) . 
Young v. Commonwealth, 585 S.W.2d 378 (Ky. 1979) . 
Zant v. Stephens, 103 S.Ct. 2733 (1983) ........................

Constitutional and Statutory Provisions:
U.S. Const. Amend. V ......................................................
U.S. Const. Amend. VI ..................................................21,
U.S. Const. Amend. VIII ......................................  26, 37,
U.S. Const. Amend. XIV ................................  15, 18, 29,
18 U.S.C. § 3006A (1983).............................................. 23,
Fed. R. Evid. 702 advisory committee n o te ..................
Ariz. Rev. Stat. Ann. § 13 4013(B) (1978)......................
Cal. Penal Code § 987.9 (West Supp. 1984) ..................
Fla. R. Crim. Pro. 3.216(a) (West Supp. 1983) ............
Hawaii Rev. Stat. § 802-7 (1968)......................................
111. Rev. Stat. ch. 38 § 113-3(d) (West Supp. 1983)___
Ind. Code Ann. § 35-5-2-2 (Burns 1975)..........................
Iowa Code Ann. § 813.2 (West 1979) ..............................
Kan. Stat. Ann. § 22-4508 (1981)......................................
Mass. Gen. Laws Ann. ch. 261, §§ 27A, 27C(4) (West 

Supp. 1984) ...................................................................
Mich. Comp. Laws Ann. § 768.20a(3) (1982)..................
Minn. Stat. Ann. § 611.21 (West Supp. 1984) ..............
Mo. Rev. Stat. § 600.150 (1978)........................................
Nev. Rev. Stat. § 7.135 (Supp. 1980)..............................
N.H. Rev. Stat. Ann. § 604-A:6 (1974) ..........................
N.M. Stat. Ann. § 31-16-13 (1978)....................................



X

Table of Authorities Continued
Page

N.Y. County Law § 722-c (McKinney 1979) .................  25
N.C. Gen. Stat. § 7A-454 (1981) ....................................  25
Okla. Stat. tit. 20 § 1304(b)(3) (1980) .............................. 28
Okla. Stat. tit. 22 § 1171 (1971)........................................ 2, 4
Okla. Stat. tit. 22 § 1175.2 (1980) .................................... 45
Okla. Stat. tit. 43A §§ 54.4(F), 56 (1980)...............  30
Or. Rev. Stat. § 135.055(4) (Supp. 1981)...............  25
Pa. Stat. Ann. tit. 16, §§ 9960 et seq. (Purdon Supp. 1983) 26
Pa. Stat. Ann. tit. 19 § 784 (Purdon 1964 & Supp. 1983) 25
S.C. Code Ann. § 17-3-80 (Law. Co-op. 1976) ...  26
Tex. Code Crim. Proc. Ann. art. 26.05 § 1 (Vernon 1979) 26
Wash. Rev. Code §§ 10.77-020(2), 10.77.060 (1980) . . . .  26
W. Va. Code § 51-11-8 (1981)............................................ 26

Medical R eferences:
E. Bassuk & S. Schoonover, The Practitioner's Guide to 

Psychoactive Drugs (1977) ........................................ 46
Davis, Antipsychotic Drugs, in 3 Comprehensive Text­

book of Psychiatry (H. Kaplan, A. Freedman & B. 
Sadock 3rd ed. 1980) .................................................. 47

T. DuQuesne & J. Reeves, A Handbook of Psychoactive 
Medicines (1982) ...................................................... 45, 47

Greenblatt, Shader & DiMascio, Extrapyramidal Ef­
fects, in Psychotropic Drug Side Effects (R. Shader &
A. DiMascio eds. 1977) ............................................  48

R. Herrington & M. Lader, 5 Handbook of Biological
Psychiatry (1981) ........................................................ 47

Hollister, Psychopharmacology, in Schizophrenia: Sci­
ence ana Practice (J. Shershow ed. 1978).............. 48

L. Hollister, Clinical Phaimacology of Psychothera­
peutic Drugs (1978) .................................................... 46

G. Honigfeld & A. Howard, Psychiatric Dings (2d ed.
1978)...........................................................................  46- 47

R. Julien, A Primer of Ding Action (1975) .................. 46

xi

Table of Authorities Continued
Page

L evitt & Krikstone, The Tranquilizers,  in Psy- 
cliopharmacology: A Biological Approach (R. Levitt 
ed. 1975) ........................................................................ 43

J. Neale & T. Oltmanns, Schizophrenia (1980)..........  43, 45
Physicians' Desk Reference (38th ed. 1984) ..................  10

Miscellaneous:
ABA Standards, Compilation (1974)..............................  23
ABA Standards Relating to the Administration of Crimi­

nal Justice, Providing Defense Services (1968) . . .  22
F. Bailey & H. Rothblatt, Fundamentals of Criminal 

Advocacy (1974) .........................................................  48
F. Bailey & H. Rothblatt, Investigation and Preparation 

of Criminal Cases (1970)........................................ 20, 31
Bonnie, Psychiatry and the Death Penalty: Emerging 

Problems in Virginia, 66 Va. L. Rev. 167 (1980) . 40
E. Borchard, Convicting the Innocent (1932)............ .... 22
Brennan, Law and Psychiati~y Must Join in Defending 

Mentally III Criminals, 49 A.B.A.J. 239 (1963) . .  31
Brief for the State of Oregon as Amicus Curiae, Gideon v. 

Waimvright, No. 155, O.T. 1962 ...............................  35
Comment, Madness and Medicine: The Forcible Admin­

istration of Psychotropic Dmgs, 1980 Wise. L. Rev.
497 .................................................................................. 45

109 Cong. Rec. 14224 (1963)............................................. 23
110 Cong. Rec. 445, 18521 (1964) .................................... 23
Criminal Defense Techniques (S. Bernstein ed. 1983) . 48
Criminal Justice Act: Hearings on H.R. 1027 Before 

Subcomm. No. 5 of the House Comm, on the Judicia­
ry, 88th Cong., 1st Sess. (1963)................................ 23

Daily Oklahoman, June 27, 1980 ....................................  13
D. Danner, Expeil Witness Checklists (1983)............  20, 21
Decker, Expert Services in the Defense of Criminal 

Cases: The Constitutional and Statutory Rights of 
Indigents. 51 U. Cinn. L. Rev. 574 (1982) ............  25



XU

Table of Authorities Continued
Page

Diamond & Louisell, The Psychiatrist as an Expert Wit­
ness: Some Ruminations and Speculations, 63 Mich.
L. Rev. 1335 (1965) .................................................... 30

J. Frank, Not Guilty (1957) .............................................. 22
Goldstein & Fine, The Indigent Accused, the Psychia­

trist, and the Insanity Defense, 110 U. Pa. L. Rev.
1061 (1962) .................................................................... 31

I. Goldstein & F. Lane, 2 Goldstein Trial Techniques (2d 
ed. 1969) ............................................................ 19, 20, 21

Liebman & Shepard, Guiding Capital Sentencing Discre­
tion Beyond the “Boilerplate”: Mental Disorder as a 
Mitigating Factor, 66 Georgetown L. J. 757 (1978) 39

Note, Right to Aid in Addition to Counsel for Indigent 
Criminal Defendants, 47 Minn. L. Rev. 1054 
(1963) .......................................................................... 22, 25

Note, Refusal to Provide Expert Witness for Indigent 
Defendant Denies Equal Protection, 59 Wash.
U.L.Q. 317 (1981) ........................................................ 25

Note, The Indigent Criminal Defendant and Defense 
Services: A Search for Constitutional Standards, 24 
Hastings L. J. 647 (1973) ..........................................  25

Note, The Indiaent’s Right to an Adequate Defense: Ex­
pert and Investigational Assistance in Criminal 
Proceedings, 55 Cornell L. Rev. 632 (1970) . 21, 22, 25

D. Phillips, The Great Texas Murder Trials (1979) . . .  5
Plotkin, Limiting the Therapeutic Orgy: Mental Patients’ 

Right to Refuse Treatment, 72 Nw. U. L. Rev. 461 
(1977).............................................................................. 43

R. Roesch & S. Golding, Competency to Stand Trial 
(1980).................................................   43

Scrignar, Tranquilizers and the Psychotic Defendant, 53
A.B.A. J. 43 (1967).................'....................................  43

M. Vonnegut, The Eden Express (1975) ......................  45
Winick, Psychotropic Medication and Competence to 

Stand Trial, 3 Am. Bar. Foundation Research J. 769 
(1977) .................................................................. 43, 45, 46

BR IEF FOR THE PETITIONER
DECISIONS BELOW

The opinion of the Oklahoma Court of Criminal Appeals i 
reported at 663 P.2d 1, and is reproduced in the Joint Appendi: 
at J.A. 66. The Judgment and Sentence of the trial court an 
reproduced at J.A. 62.

JURISDICTION
The Judgment of the Oklahoma Court of Criminal Appeal 

was entered on April 12, 1983. A timely petition for rehearinj 
was filed and was denied on June 15, 1983. J.A. 82. On Augus 
12,1983, Justice White entered an order extending petitioner’: 
time to file a petition for a writ of certiorari until September 13 
1983. The petition was filed on September 13, 1983, and wa: 
granted on March 19, 1984. J.A. 83. The jurisdiction of this 
Court is invoked under 28 U.S.C. § 1257 (3).

CONSTITUTIONAL AND STATUTORY PROVISIONS 
INVOLVED

Pertinent provisions of the United States Constitution am 
of the laws of Oklahoma are set forth in the Appendix, infra

STATEMENT OF THE CASE
1. In October, 1979, petitioner Glen B. Ake (pronounce! 

“ache”) was twenty-four years old. He was married and em 
ployed as an oil driller. His entire prior criminal record con 
sisted of a 1975 conviction for unauthorized use of a motoi 
vehicle. Report of the Trial Judge, at 1, 5.

On October 15, after a day of heavy drinking and drug use 
PX 68 at 1-2, 5-6; Tr. 546, 549,1 Ake and another man enterec 
the home of the Reverend Richard Douglass in Canadian Coun 
ty, Oklahoma. Rev. Douglass, his wife and their two childrer

1 “Tr.___ ” indicates references to the trial transcript.



2

were at home. Ake bound, gagged and shot the members of the 
Douglass family, killing Rev. and Mrs. Douglass.

These killings were undeniably tragic, and if committed by a 
person in his right mind, heinous. But Ake’s defense—and the 
only seriously contested factual issue at trial—was that he was 
legally insane at the time. The question in this Court is whether 
the State of Oklahoma determined that he was not insane, and 
that he should be put to death, in a constitutionally acceptable 
manner.

2. Ake was arrested in Colorado in November 1979 and 
was returned to Oklahoma. After preliminary proceedings, he 
was arraigned on February 14, 1980, in the District Court for 
Canadian County. The court found his behavior at arraignment 
and in other incidents at the jail to be so “bizarre,” J. A. 2, that 
it sua sponte ordered him to be examined by a psychiatrist “for 
the purpose of advising with the Court as to . . . whether the 
Defendant may need an extended period of mental observa­
tion.” Id.2

Ake was examined by William L. Allan, a psychiatrist ap­
pointed by the court, on February 22, 1980. Dr. Allan noted 
that “[a]t times he appears to be frankly delusional. . . .  He 
claims to be the ‘sword of vengeance’ of the Lord and that he 
will sit at the left hand of God in heaven.” J.A. 8. Dr. Allan 
diagnosed probable paranoid schizophrenia and recommended 
a “more prolonged psychiatric evaluation” to determine Ake’s 
competency to stand trial. J.A. 9. On March 5, Ake was 
ordered committed to Eastern State Hospital at Vinita. J.A. 2. 
Pursuant to statute and the court’s order, he was examined 
only with respect to his “present sanity,” i.e., his competence 
to stand trial, Id.', Okla. Stat. tit. 22, § 1171 (1971), App. 6a.

On April 1, 1980, Dr. R. D. Garcia, the Chief Forensic Psy­
chiatrist at Eastern State hospital, reported to the court that

2 The arraignment was recorded by a court reporter, but her notes 
were never transcribed and she no longer resides in Oklahoma. 
Counsel for both parties are attempting to obtain a transcript.

3

Ake was not competent to stand trial. J.A. 10. The court held 
special hearing on April 10 to determine Ake’s competencj 
Dr. Allan, who had consulted with Dr. Garcia, testified:

[Ake] is a psychotic . . . his psychiatric diagnosis was tha 
of paranoid schizophrenia—cnronic, with exacerbation 
that is with current upset, and that in addition to th 
psychiatric diagnosis, that he is dangerous.

J.A. 11. Dr. Allan recommended that:

because of the severity of his mental illness and because o 
the intensities of his rage, his poor control, his delusions 
he requires a maximum security facility within— 
believe—the State Psychiatric Hospital system.

J.A. 12. When asked whether Ake could currently tell righ 
from wrong, Dr. Allan responded that he could not:

Q. [by the Court]: [D]o you have an opinion as t( 
whether Mr. Ake at this time understands the signifi 
cance or the difference between right and wrong?

A. At this time?
Q. At this time?
A. I have to give a qualified opinion because—uh—all o 

his statements are co[u]ched in terms of his religious 
beliefs which are delusional and his concept of right 
and wrong does not accept the Court’s authority o: 
government.

Q. I see.
A. So, he just doesn’t accept what the rest of us live by.

Q. [D]o I interpret your answer to say that in terms ol 
society’s judgment as between right and wrong, 
whatever things he may have are not on that level but 
are somewhat different?

A. Yes. His wor[l]d would be a different dimension. He 
does not, as I understand it, accept the ordinary rules 
of right and wrong.

J.A. 13-14. Neither Dr. Allan nor Dr. Jack Enos, a non- 
psvchiatrist M.D. who also testified that Ake was mentally ill



4

and dangerous, see Tr. of Mental Health Hearing at 24-25, w as 
asked anything about Ake’s mental condition at the time of the 
offense.

The court found Ake to be “a mentally ill person in need of 
care and treatment” and ordered him re-committed to the 
State mental hospital. J. A. 15. Pursuant to statute, all criminal 
proceedings were suspended. Okla. Stat. tit. 22 § 1171 (1971), 
App. 6a.

Six weeks later, Dr. Garcia reported to the court that Ake 
had become competent to stand trial. He noted that Ake was 
being maintained on 200 milligram doses of Thorazine adminis­
tered three times daily, and recommended that this dosage be 
continued. J.A. 16. Without further inquiry, the ciiminal 
proceedings against Ake were ordered resumed. J.A. 3.

3. A pre-trial conference was held on June 13, 1980. Ake’s 
court-appointed counsel informed the court that in order to 
prepare an adequate insanity defense, he needed the assist­
ance of a psychiatrist to examine Ake with respect to his 
mental condition at the time of the offense. J.A. 17. During 
Ake’s three-month stay at the State hospital, no such examina­
tion had been performed. Counsel urged that, in view of peti­
tioner’s indigency,

the court can award us money to prepare a proper defense. 
And, at this time I am going to ask the court to grant us a 
reasonable amount of funds [with] which to pay [a] psychi­
atrist . . .

J.A. 17. The Judge expressed doubt that he had the authority 
under State law to grant the request, J.A. 17, 18, but counsel 
argued that the court was required to do so under the federal 
Constitution:

Glen Ake, indigent [with] court-appointed counsel; still 
under the constitution is entitled to monies for a psychia­

trist as if he were another Cullin Davis who had the monej 
to pay for it.3

To deny to this client the . . . funds for the preparation: 
would boa miscarriage of justice . . . because an attorney 
has got to have, as the court knows, funds to properl' 
defend his client. And, in a Murder One case, I hear thi 
word “expense,” and I cannot possibly believe that n 
anybody’s heart a few meager dollars is going to stain 
between a man charged with Murder in the First Degree 
of insuring him of a constitutional, fair and impartial trial 
and being [un]prepared because of a few dollars that the,1 
think might be spent of the taxpayers’ money.

J.A. 17, 19.
The motion was denied.4 The court agreed that the defend 

ant was entitled to a psychiatric examination, if he could affon 
it, J.A. 3-4, 21, but felt bound by State law that, in the court’ 
own words, was “almost cripplingly restrictive” with respec 
to providing funds for defense expenses. J.A. 20. The Cour 
rejected petitioner's federal constitutional claim on the author 
ityof United States exrel. Smith v. Baldi, 344 U.S. 561 (1953) 
“in which the U.S. Supreme Court held that a State does no 
have a constitutional duty to provide private psychiatric exam 
ination to indigent defendants.” Id. Nevertheless, recognizinj 
the relevancy and materiality of the requested psyehiatri 
examination to Ake’s insanity defense, the court ruled tha 
counsel could “have the defendant available, if you are able t 
arrange [the psychiatric examination] in some other manner. 
J.A. 21.

T. Cullin Davis is a Texas millionaire who was charged with the 
murder of his step-daughter and acquitted by a jury. See D. Phillips 
The Great Texas Murder Trials (1979).

4 Anticipating the denial of his motion for a defense expert, counse 
requested, as a fall-back alternative, an examination with respect t( 
Ake’s sanity at the time of the crime by a neutral, court-appointec 
psychiatrist. J.A. 18. This request was also denied.



6

4. Jury selection for Ake’s trial began on June 23,1980. Tr. 
25. On June 24 and 25, the State put on twenty-three witnesses 
to prove the virtually uncontested fact that Ake had committed 
the homicides in question. Tr. 279-550. The entire defense 
case—and the entirety of the evidence on petitioner’s insanity 
defense—was presented to the jury between 11:05 a.m. and 
2:15 p.m. on June 25, with a recess for lunch in the middle. Tr. 
552-609, 571.

The defense called three witnesses: Dr. Allan, Dr. Enos, and 
Dr. Garcia. Each testified that Ake was mentally ill, but none 
was able to express an opinion about Ake’s sanity at the time of 
the offense because none had examined him for that purpose. 
The prosecution repeatedly called to the jury’s attention the 
fact that the doctors could not testify about Ake’s condition at 
the time of the offense, thereby fueling the unwarranted in­
ference that his insanity defense was without merit. The 
prosecution pressed each witness to admit that he had not 
performed or seen the results of any examination diagnosing 
Ake’s mental state in October 1979—the very examinations 
Ake had requested and the State had denied.

Thus, Dr. Allan testified that when he examined Ake, in 
February and April, Ake had been mentally ill and “very 
dangerous.” J. A. 35, 36, 37. He testified that, at those times, 
Ake thought he was “literally the sword of vengeance,” J. A. 
34, and “really didn’t accept the authority of any earthling, 
court, or government, or person.” J. A. 39. Dr. Allan testified 
that Ake’s illness might have been present since the age of 
seven. J.A. 35, 38. But on cross-examination by the District 
Attorney, he admitted that he had no opinion about whether 
Ake knew right from wrong on October 15, 1979:

Q. Doctor, your test at the time of your interview . . . 
was your test to ascertain whether he knew right 
from wrong?

A. No, it was not.
Q. It was whether he had a mental illness, is that cor­

rect?

7

A. Yeah, . . .  in neither case did I specifically go into 
detail, try to get answers as to his ability to know 
right from wrong at the time of the alleged act.

Q. So, that was not your concern, is that correct?
A. That’s right.

J.A. 37-38.
Dr. Enos testified that in his opinion Ake was a paranoid 

schizophrenic, J.A. 42, who, at the time of his interview with 
Enos in April, communicated only with God. J.A. 41. On cross- 
examination, he, too, readily conceded that his examination 
and opinion did not relate to Ake’s mental state in October 
1979:

Q. Then your examinations, or your conclusions are not 
whether he knew right from wrong?

A. No.
Q. And, certainly wouldn’t relate to the months of 

October—
A. Not at all.
Q. —or November 1979, as to whether he knew right 

from wrong?
A. That’s correct.

Q. Is there any place, in any report you have ever seen, 
or anything you have had the benefit to review, that 
has said “this defendant was legally insane in October 
or November of 1979?”

A. No, sir.
Q. Do you have any opinion as to whether—
A. No, sir.

J.A. 46.
The final defense witness was Dr. R. D. Garcia, Chief Fore­

nsic Psychiatrist at Eastern State Hospital, where Ake had 
been a patient for three months. J.A. 47. Dr. Garcia agreed



8

with the diagnosis of Drs. Allan and Enos that Ake was mental­
ly ill with “schizophrenia, paranoid type.” He testified that 
Ake’s symptoms were full-blown “paranoid delusions, 
hallucinations, and so forth, and so on.” J.A. 49.

Dr. Garcia testified that while at Eastern State Hospital, 
Ake had been carefully evaluated and had been subjected to a 
broad range of physiological and psychological tests. J.A. 48, 
50.5 But Ake had never been examined or evaluated with 
respect to his mental condition at the time of the charged 
offenses. J.A. 53. On cross-examination, the District Attorney 
repeatedly drove home the fact that Dr. Garcia, like the other 
medical witnesses, was unable to express any opinion about 
Ake’s sanity the previous October:

Q. For what purpose did you receive [Ake]?
A. For the purpose of psychiatric determination, or ob­

servation and testing, in order to determine whether 
he was insane, or not.

Q. Incompetent to aid in his defense?
A. Yes, sir.
Q. Okay. Not legally insane as knowing right from 

wrong, but just incompetent to aid in his defense, is 
that correct?

A. Yes, sir.
Q. Was there any call at that time for a diagnosis as to 

October or November 1979? Were you looking into 
that?

A. No, sir . . .

Q. Have you done any testing or evaluation of Glen 
Burton Ake as towards legal insanity at the time of 
the commission of the offense?

A. No, sir, we were not able to.

5 Dr. Garcia testified that the results of these tests and clinical 
observations had ruled out the possibility that Ake was malingering 
or faking mental illness. J.A. 48, 51.

9

Q. Do you have any opinion as to Glen Burton Ake’s 
mental insanity at the time of the offense—October or 
November?

A. No, I would not say . . .

Q. Doctor, did you do any tests to determine whether 
the person that is seated here, Glen Burton Ake, was 
mentally insane at the time of this incident?

A. No, sir, we were not able to—
Q. Okay. You have no opinion.
A. —make any examination.
Q. And, you have no opinion as to that, is that true?
A. No, sir.

J.A. 52-53.
Indeed, the prosecuting attorneys believed that they had 

shown so clearly that the doctors’ testimony was irrelevant to 
the issue before the jury that they moved to have their testi­
mony stricken from the record. J.A. 39, 54.

The defense then rested. The defendant did not testify. As 
his counsel explained at the bench,

[D]ue to the uncooperative nature of the defendant, and 
the lack of communication . . . defense counsel at this time 
is unable to put the defendant on the witness stand, or to 
determine whether or not he in fact wants to execute [sic] 
his Constitutional right to testify in his behalf . . .  We 
cannot get a yes or no if he wants to take the stand, so we 
rest.

J.A. 54-55. Even the prosecution was taken aback at the brev­
ity of the defense case:

MR. GOERKE: (Out of the hearing of the jury) Based 
upon that only? Based upon that only, you rest?
MR. BREWER: (Out of hearing of the jury) Yes, sir.

J.A. 55. The State put on no evidence in rebuttal. Tr. 611.



10

5. During his trial, Ake was involuntarily sedated with 200 
milligrams of Thorazine, administered three times a day. J.A.
49 52. “Thorazine is a major tranquilizer used in people w ho 
are psychotic, as opposed to neurotic." J.A. 41 (testimony of 
Dr Enos).6 A normal person would become “extremely drow­
sy” on a single daily dose of that size, and “three times as 
drowsy” on the dose administered to Ake. J.A. 42. Ake re­
mained mute throughout the trial. He refused to converse with 
his attorneys, and stared straight ahead during both stages of 
the proceedings.” Ake v. State, 663 P.2d at 6, J.A. 7 .

Defense counsel repeatedly protested this situation during 
the trial, calling the court’s attention to the fact that they wei e 
utterly unable to communicate with their client. For examp e, 
when the court was about to hear testimony in chambers on the 
admissibility of Ake’s post-arrest statement, defense counsel 
were asked if they wished the defendant to be present. They
replied:

MR BREWER: We waive presence of our—he ain’t going 
to talk to us anyway. He doesn’t know what is going on. I e 
is goofier than hell We don’t need him, and he can t assist 
us We have already told the Court that he doesn t possess 
the ability to aid and assist in a jury trial. Has he ever 
talked to you, Mr. Strubhar?
MR. STRUBHAR: No.
MR. BREWER: He has never even talked to me. Never 
said hello.

J A 27. And see J.A. 54-55, 26 (“while he takes this tranquiliz­
er, he becomes a zombie”) (remarks of defense counsel), Ir. 
501. Even the trial judge agreed that “we have had all along a 
real question as to whether the man had any kind of mental 
capacity.” Tr. 495.

6. At the close of the evidence in the criminal responsibility 
phase of the trial, the judge charged the jury in accordance 
with Oklahoma law, that the defendant could be found not

* Thorazine is the registered trademark for a brandI of chlorproma- 
zine manufactured by Smith Kline & French Lahorator.es. See 
Physicians’ Desk Reference 1896 (38th ed. 1984).

11

guilty by reason of insanity only if he did not have the ability to 
distinguish right from wrong at the time of the alleged offense. 
J.A. 57. The jury was instructed that Ake was to be presumed 
to have been sane at the time of the crime unless he presented 
evidence sufficient to raise a reasonable doubt about his sanity 
at that time; if he raised such a doubt, the burden would shift o 
the State to prove, beyond a reasonable doubt, that he hac 
been sane. J.A. 57-58; see Ake v. State, 663 P.2d at 10, J.A. 78.

In his closing argument, the District Attorney argued to the 
jury that the psychiatrists’ inability to express an opinion 
about Ake’s sanity at the time of the offense proved that no 
reasonable doubt as to his sanity existed:

Do vou remember my persistence in asking 1w  
Dr ‘Allan, “Do vou have an opinion as to whether he knew 
right from wrong at the time—during Octobei and 
November of 1979?” “No.” The same question was asked 
of Dr Garcia. The same question was asked of Dr. Enos. 
None had an opinion as to whether he knew right fiom 
wrong in October or November of 19/9.

So bearing in mind we are looking at a test of knowing 
right from wrong on October 15, 1979 . . .realizing the 
consequences of Uiose acts, is there a probable—a reason­
able doubt created? None of the doctors had any opinion. 
Remember? Each one was distinctly asked, “Do you have 
any opinion as to whether the defendant knew right from 
w/ong"n October and November, 1979?” None of them 
did.

J A. 55.1
The Jury rejected Ake’s insanity defense and returned a 

verdict of guilty on all counts.

7 The District Attorney also implied to the jury that Ake would go 
free if he were found not guilty by reason of insanity.

Mr Brewer says, "That won’t happen. They won’t just turn 
him loose.” The Judge has taken care of that in Instruction 
12A—read that Send him to a mental institution—well, we ha\ e 
been there They sent him April 10th. They sent him back June 
9th, and said he is still mentally ill, but he is ready to go back. He



12

7. The sentencing stage of Ake’s trial began late that same 
afternoon. It did not last long. Neither the State nor the 
defense put in any new evidence. Both sides rested on the 
evidence previously presented. Tr. 703-04.

In urging the jury to return the death penalty, the prosecu­
tion explicitly relied on the testimony of the psychiatrists to 
establish an aggravating circumstance, namely that “there is a 
high probability that [Ake] would again commit criminal acts of 
violence.” Tr. 717. The State reminded the jury of “the testi­
mony of the three psychiatrists who have evaluated Glen Ake’s 
mental illness, and say he is dangerous to society”; “each one 
. . . stated, this defendant, Glen Burton Ake, is dangerous, he 
is volatile.” Tr. 716, 714 (closing argument); see J. A. 37, Tr. 601 
(doctors’ testimony).

Petitioner had no expert witness to rebut this testimony. 
Moreover, his counsel was deprived of the expert psychiatric 
assistance necessary to develop and present mitigating evi­
dence, such as Ake’s mental state at the time of the offense, or 
the psychological effects of the child abuse Ake had suffered at 
the hands of his father (see Tr. 559). Again, the cause of this 
limitation of the available psychiatric evidence was the State’s 
refusal to provide the defense with funds to obtain a psycholog­
ical examination on these matters, combined with the State 
law that restricted the scope of the examination conducted by 
the State and court-appointed psychiatrists to the question of 
competency to stand trial.

The jury found three aggravating circumstances, including 
the likelihood that Ake would commit future acts of violence,

is sedated. If we hadn’t had these charges pending, he would 
have gone out on the street a free man.
MR. BREWER: I’ll object to that, if the Court please.
THE COURT: Overruled.
MR. GOERKE: If the charges hadn’t been pending on June 9th 
he would have gone back out on the street.

J.A. 56.

13

•J.A. 60.8 The jury fixed Ake’s punishment at death for each 
the two murder counts, and at 500 years imprisonment for ea 
of the two counts of shooting with intent to kill. J.A. 61, 1 
696-97.”

On July 25, 1980, the trial court denied Ake’s motion foi 
new trial and sentenced him, in conformity with the jur, 
verdicts, to death by lethal injection. J.A. 63.

8. On appeal to the Oklahoma Court of Criminal Appea 
Ake contended that “he, as an indigent defendant, should ha 
been provided the services of a court-appointed psychiatr 
. . .  as incident to his constitutional rights to effective assi 
ance of counsel and availability of compulsory process : 
obtaining witnesses.” Ake v. State, 663 P.2d at 6, J.A. 71. T 
court disagreed:

We have held numerous times that the unique nature 
capital crimes notwithstanding, the State does not ha

8 The other aggravating circumstances found were that the cri 
was committed to avoid arrest and that the murders were especif 
cruel, heinous and atrocious. J.A. 60.

8 As the sentencing phase of the trial began, the courthouse 
conditioning broke down. Tr. 698. The temperature outside was 1 
Fahrenheit. (Datum from U.S. Dep’t of Commerce, National Clir 
tic Data Center.) When the jurors retired into the windowless ji 
room during a brief chambers conference, they sent a note to 
court after a few minutes asking to be allowed to return to  ̂
courtroom because the jury room was insufferably hot. Tr. 7 
Counsel noted “they may be ready to pass out,” and “I’m about to 
myself.” Tr. 706. The court agreed that “[i]t is unbearable in her 
Tr. 711. The court suggested to the jurors that they recess for sup 
and then spend the night sequestered at a motel. Id. But to av 
being sequestered overnight, the jurors chose instead to conclude 
trial. Tr. 712. After closing arguments, the jury was returned to 
same stifling jury room to decide upon the life or death of the defe 
ant. The verdict of death was returned forty minutes later. Dc 
Oklahoman, June 27, 1980, at 1.



14

the responsibility of providing such services to indigents 
charged with capital crimes.

Id. The court found that Ake had “failed to establish any 
reasonable doubt as to his sanity at the time the crimes were 
committed,” id. at 10, J.A. 78, but ignored the fact that his 
attempt to do so was thwarted by the State’s refusal to have 
him examined on that issue by even a single psychiatrist or 
psychologist.

The court emphasized, as had the prosecution at trial, the 
inability of any of the doctors who testified to give “an opinion 
as to [Ake’s] ability to distinguish between right and wrong at 
the time of the shootings." Id. Yet this failure of evidence 
resulted solely from petitioner's indigency: Oklahoma refused 
to appoint a psychiatrist to evaluate Ake’s mental condition at 
the time of the offense and he lacked the funds to retain one.10

Petitioner also contended on appeal that the Thorazine he 
was given during his trial rendered him unable to understand 
the proceedings against him or to assist counsel with his de­
fense. He also complained that his drugged and “hypnotic” 
state prejudiced him in the eyes of the jury. Brief of Appellant 
at 18-23. The Court of Criminal Appeals rejected these argu­
ments, relying on Dr. Garcia’s May 22 letter which stated that

10 The court did not explain how it could conclude that Ake had not 
raised even a reasonable doubt about his sanity when he had been 
adjudged incompetent to stand trial after “bizarre” behavior at 
arraignment, when three doctors had testified that he was a paranoid 
schizophrenic, when Dr. Allan had testified that his mental illness 
might extend back to his childhood and therefore could have been 
“apparent” on the day of the offense, J.A. 38, and when the State’s 
Chief Forensic Psychiatrist had testified, in answer to a hypothetical 
question, that a person in Ake’s condition at the time of the offense 
might not have been able to tell right from wrong, J.A. 54.

Of course, if the Court of Criminal Appeals had concluded that Ake 
had raised a reasonable doubt about his sanity, it would have been 
obliged to reverse his conviction, since the State had not put on 
evidence that could establish his sanity beyond a reasonable doubt.

15

under the influence of Thorazine Ake was competent to stain 
trial, and on the supposed absence of evidence “that an; 
change in his competency occurred in the month between hi 
release from Vinita [hospital] and his trial." 663 P.2d at 7, J.A 
72. The Court could not ignore the fact that Ake “starei 
vacantly ahead throughout the trial,” id. at 7 n.5, J.A. 73, buti 
refused to concede any possibility that the Thorazine wa 
responsible. Rather, the court conjectured, Ake’s behavio 
might have been “simulated to delay justice,” id. at 8, J.A. 74

It is quite possible that the defense of insanity interpose! 
by the appellant fostered such behavior on his part.

Id. at 7 n.4, J.A. 72. But there is absolutely no basis in th« 
record for such an insinuation. To the contrary, the State’s owi 
Chief Forensic Psychiatrist testified that a series of sensitive 
psychological tests and clinical observations had unequivocalb 
ruled out the possibility that Ake’s mental illness was feigned 
J.A. 48, 51.

Ake’s other allegations of error were similarly rejected, an( 
the judgments of guilt and the sentences of death wen 
affirmed. 663 P.2d at 12, J.A. 81. This Court granted Ake’: 
motion for leave to proceed in forma pauperis and his petitioi 
for a writ of certiorari. J.A. 83.

SUMMARY OF ARGUMENT
1. A defendant’s right to a fair criminal trial is guaranteec 

against the States by the Fourteenth Amendment. Powell v 
Alabama, 287 U.S. 45 (1932). To secure a fair trial, indigen 
defendants must be provided with the assistance that is essen 
tial to the “proper functioning of the adversarial process.' 
Strickland v. Washington, No. 82-1554, slip op. at 16 (U.S 
May 14, 1984). This Court has previously recognized that sucl 
necessary assistance includes counsel, Gideon v. Wainwright 
372 U.S. 335 (1963), and the transcripts of prior proceedings 
Griffin v. Illinois, 351 U.S. 12 (1956).

In a proper case, the assistance of an expert is equally 
fundamental and essential. When a case involves disputec



16

factual issues of a sort that lay people do not have the knowl­
edge, training or experience to understand fully without ex­
pert assistance, it is fundamentally unfair to put a defendant on 
trial without assuring that he and his counsel have the means to 
prepare and present those issues to the factfinder intelligibly 
and upon fairly adversary terms. The provision of such assist­
ance is also required to fulfill the law’s promise that justice not 
be reserved for the wealthy. Griffin v. Illinois, supra.

In this case, the assistance of a psychiatrist or psychologist 
was manifestly necessary. Glen Ake’s only defense to a capital 
charge was that he had been insane at the time of the alleged 
offense. It was beyond dispute that he was severely mentally 
ill. He had been adjudged incompetent to stand trial, and had 
been committed to the State mental hospital for three months 
between arraignment and trial. In this case, the assistance of a 
qualified mental health professional was as essential as the 
assistance of an attorney to a real test—a “trial" in the original 
meaning of the word—of the merits of his insanity defense. 
Ake was therefore denied a fair trial by the State’s refusal to 
provide him with any expert assistance.

The federal government and a large majority of the States 
have acknowledged their responsibility to provide expert as­
sistance to indigent criminal defendants in appropriate cases. 
But Oklahoma acknowledges no such responsibility. This 
Court should confirm that in proper cases the provision of such 
assistance is required by the Constitution.

2. In a capital case, the sentencing proceeding closely re­
sembles a trial, and, like a trial, it must be a truly adversary 
proceeding. Strickland v. Washington, supra. Where expert 
assistance is required to make it so, the State must make such 
assistance available to indigent defendants for the reasons 
given above.

Moreover, where the State seeks to impose the penalty of 
death, it “is essential . . . that the jury have before it all 
possible relevant information about the individual defendant 
whose fate it must determine.” Barefoot v. Estelle, 103 S.Ct.

17

3383, 3396 (1983). It is universally recognized that mental 
illness and its effects are mitigating circumstances that may 
move a jury to forego the death penalty. Refusing to provide an 
indigent defendant facing the death penalty with the means of 
presenting such information to the jury in a credible and in­
telligible manner makes it likely that he will be condemned to 
death erroneously—i.e., where a fully informed jury would not 
impose the death penalty.

The refusal to provide such assistance is even more egre­
gious where, as here, the State relies on expert testimony to 
establish the aggravating circumstance of predictable future 
dangerousness, but the defendant is precluded by his poverty 
from rebutting that testimony with equally authoritative ex­
pert witnesses. Such a heavy thumb on the scales of justice— 
with a human life literally in the balance—cannot meet the 
standards of due process and equal protection.

3. Due process also precludes the trial of a person who 
cannot understand and participate intelligently in the proceed­
ings against him. Drope v. Missouri, 420 U.S. 162 (1975); Pate 
v. Robinson, 383 U.S. 375 (1966). A court is required to make 
inquiry when a defendant’s behavior or appearance raises a 
serious question of competency. Id. No inquiry was made here, 
although the judge himself acknowledged that the defendant’s 
competency was doubtful. Tr. 495. This requires reversal.

Reversal is also required because, on this record, it is plain 
that the Thorazine being administered to the defendant ren­
dered him so sedated or uninvolved in his surroundings that he 
was virtually absent from his own trial. And his drugged, 
“zombie"-like appearance and demeanor surely prejudiced him 
in the eyes of the jurors who held his fate in their hands.



18

ARGUMENT

I WHEN AN INDIGENT DEFENDANT’S SANITY AT THE 
TIME OF THE OFFENSE IS SERIOUSLY IN ISSUE. 
THE STATE MAY NOT DENY HIM THE MEANS TO 
ESTABLISH HIS INSANITY DEFENSE

In this case, an indigent defendant displaying obvious signs 
of severe and possibly long-standing mental illness at arraign­
ment and at trial was denied any psychiatric examination 
directed to his sanity at the time of the crime. His entire 
defense case, the closing arguments of counsel, the jury’s 
guilty verdict, the sentencing hearing and the jury’s sentence 
of death took less than one trial day. Tr. 553-740. Such a 
proceeding does not comport with the guarantees of the United 
States Constitution.

The Oklahoma courts believed their procedures to be ade­
quate under the rule of United States ex rel. Smith v. Baldi, 
344 U.S. 561 (1953). But Baldi dk\ not approve such a complete 
denial of access to expert services; indeed, the decision relies 
upon the fact that a psychiatric examination was provided in 
that case. See 344 U.S. at 568. To the extent, if any, that Baldi 
stands for the proposition that a defendant can never have a 
constitutional right to expert assistance at State expense, it is 
inconsistent with the subsequent rulings of this Court and with 
the constitutional requirement of fundamental fairness in ci lm- 
inal trials, and should be overruled.

A. The Constitution Requires That Indigent Defendants Be 
Provided With Reasonably Necessary Expert Assistance.

This Court has long recognized that “[t]here can be no equal 
justice where the kind of trial a man gets depends on the 
amount of money he has.” Griffin v. Illinois, 351 U.S. 12, 19 
(1956) (plurality opinion). For this reason, the provision of 
assistance to indigent criminal defendants that is “ ‘fun­
damental and essential to a fair trial’ is made obligatory upon 
the States” by the Due Process Clause of the Fourteenth 
Amendment. Gideon v. Wainwright, 372 U.S. 335, 342 (1963).

19

In a proper case, expert assistance is fundamental and essen­
tial to a fair trial. In such a case, the Constitution requires the 
States to make necessary expert assistance available to in­
digent criminal defendants.

In Powell v. Alabama , 287 U.S. 45 (1932), the Court 
hypothesized “the extreme case of a prisoner charged with a 
capital offense, who is deaf and dumb [and] illiterate. . . prose­
cuted by counsel for the state without assignment of counsel 
for his defense, tried, convicted and sentenced to death. Such a 
result. . . would be little short of judicial murder.” Id. at 72. 
The situation would be no different if counsel was appointed, 
but was not provided with the means—for example, a sign- 
language interpreter—by which to communicate with his
client.

The same reasoning applies where the assistance of an ex­
pert is necessary to discover, analyze, and present to the judge 
or jury facts that are matters of specialized knowledge, or to 
explain facts, the significance of which will not otherwise be 
apparent to the lay person. “An intelligent evaluation of facts is 
often difficult or impossible without the application of some 
scientific, technical, or other specialized knowledge.” Fed. R. 
Evid. 702 advisory committee note. Even fifty-five years ago,
it was

a matter of common knowledge, that upon the trial of 
certain issues, such as insanity or forgery, experts are 
often necessary both for prosecution and for defense. . . . 
rA1 defendant may be at an unfair disadvantage, it he is 
unable because of poverty to parry by his own witnesses 
the thrusts of those against him.

Reilly v. Baiwy, 250 N.Y. 456, 461, 166 N.E. 165, 167 (1929) 
(Cardozo, C.J.). Trial lawyers therefore understand that 
“[m]odern civilization, with its complexities of business, sci­
ence and the professions, has made expert and opinion evi­
dence a necessity.” 2 I. Goldstein & F. Lane, Goldstein Tnal 
Techniques § 14.01 (2d ed. 1969).

The fact that a government expert may have examined the 
defendant or the evidence does not satisfy the defendant’s need



20

for expert assistance. In the first place, an independent expert 
may come to a different conclusion. See n. 12, infra; cf. Watson 
v. Cameron, 312 F.2d 878 (D.C. Cir. 1962) (persons confined in 
public mental hospital entitled to examination by outside ex­
pert) (Burger, J.). But the defendant’s need for an expert is not 
based only on that possibility, important as it is. An expert 
serves many crucial purposes in litigation other than testifying 
at trial. At the very outset of a case, an expert may be neces­
sary to evaluate the facts and lay a groundwork for future 
investigation and trial strategy. “[ I ]t may be impossible to 
properly conduct such an evaluation without expert assist­
ance.” D. Danner, Expert Witness Checklists 72 (1983). In a 
criminal case, such an evaluation may be essential in making an 
intelligent decision about whether to pursue or abandon cer­
tain lines of defense, or even in deciding whether to go to trial 
or to seek to negotiate a plea bargain. If the case goes forward, 
“counsel often needs an expert for assistance in becoming an 
expert in the field [himself], and then to understand the in­
tricacies of the case sufficiently to try it successfully.” Id. at 2. 
In helping the attorney prepare for trial, an expert will “advise 
counsel about the facts and theories that counsel may face from 
the opposing side.” Id. at 41. She may be able to refer counsel 
to relevant studies and data not otherwise available to him, id. 
at 74, and can assist in preparing for the examination of 
witnesses—especially the cross-examination of the other par­
ty’s experts. Id. at 72, 292. Indeed, one authority advises that 
it may be best not to cross-examine opposing experts at all 
when counsel “has failed to become somewhat of an expert on 
the subject himself by prior preparation, study and consulta­
tion with his own expert witnesses.” Goldstein Trial Techni­
ques, supra, at § 14.24.

Of course, the expert’s role at the trial itself is also crucial. 
“Testimony emanating from the depth and scope of specialized 
knowledge is very impressive to the jury. The same testimony 
from another source can have less effect.” F. Bailey & H. 
Rothblatt, Investigation and Preparation of Criminal Cases 
116 (1970). Thus, if “used properly, an expert may be the most

21

important tool to counsel in preparing the case for trial.” I 
Danner, supra, at 71-72 (emphasis added).

Denying an indigent defendant access to necessary expe 
assistance not only harms the defendant, but undermines tl 
integrity of the truthfinding process and the reliability of tl 
verdict. “The very premise of our adversary system of crimir 
justice is that partisan advocacy on both sides of a case will be 
promote the ultimate objective that the guilty be convicted at 
the innocent go free.” Hei~ring v. New York, 422 U.S. 853, 8 
(1975). The effective functioning of a true adversarial proce 
is protected by the Sixth Amendment’s guarantee of effecti 
assistance of counsel. United States v. Cronic, No. 82-660, s 
op. at8(U.S. May 14,1984). “[I]fthe process loses its charact 
as a confrontation between adversaries, the constitutior 
guarantee is violated.” Id. at 8-9."

But the right to an effective counsel “is meaningless if t, 
lawyer is unable to make an effective defense because he has. 
funds to provide the specialized testimony which the ca 
requires.” Bush v. McCollum, 231 F. Supp. 560, 565 (N..

11 In addition to the guarantee of effective assistance of couns 
two other clauses of the Sixth Amendment presuppose the exister 
of a functioning adversary system: The defendant s rights to 
confronted by the witnesses against him” and “to have compulse 
process for obtaining witnesses in his favor.” Like the right to assi 
ance of counsel, these rights cannot be effectively implemented wi 
out providing necessary collateral services to indigent defendan 
Without expert assistance and advice, the value of cross-examinat 
in a case involving specialized testimony is questionable. Goldst< 
Trial Techniques, supra, at § 14.24. And without the funds to ret 
necessary experts, a defendant’s right to compulsory process is 
duced to “the shadow of the right . . . deprived of the substanc 
People v. Watson, 36 111. 2d 228, 233, 221 N.E.2d 645, 648 (19 
(holding the availability of compensated expert witnesses for 
digent defendants to be constitutionally required). See genera 
Note, The Indigent's Right to an Adequate Defense: Expert a 
Investigational Assistance in Criminal Proceedings, 55 Cornell 
Rev. 632, 641-43 (1970).



22

Tex. 1964), affd per curiam, 344 F.2d 672 (5th Cir. 1965). This 
proposition is not just a matter of logic. In practice, the "in­
ability to finance these [expert] expenses has led, with some 
frequency, to convictions later found to be erroneous." Note, 
Right to Aid in Addition to Counsel for Indigent Criminal 
Defendants, 47 Minn. L. Rev. 1054, 1060 (1963) (citing E. 
Borchard, Convicting the Innocent (1932) and J. Frank, Not 
Guilty (1957)).12

The legal profession has recognized that the proper function­
ing of the adversary system

rests on certain basic assumptions: first, that an accused 
person is presumed innocent; second, that guilt must be 
established in an adversary proceeding . . .; and third, 
that the two adversaries may be aided by advocates cap­
able of rendering effective assistance to the cause.

ABA Standards Relating to the Administration of Criminal 
Justice, Providing Defense Services, at 141 (1968) (final em­
phasis added). The third assumption, of effective representa­
tion, implies certain responsibilities:

[f]or the representation provided to be effective, defense 
counsel must be provided with adequate resources for 
investigation and the employment of experts to assist in 
preparation of the case.

Id. at 143 (emphasis added). Thus the ABA Standards would 
require the government to “provide for investigatory, expert

12 For example, in one murder case, state police fingerprint experts 
testified that a latent print lifted from the crime scene was defend­
ant’s. Court-appointed defense counsel was able to procure his own 
expert, who proved that the print was not the defendant’s by show­
ing three crucial points of dissimilarity. An acquittal followed. See 
Note, The Indigent’s Right to an Adequate Defense: Expert and 
Investigational Assistance in Criminal Proceedings. 55 Cornell L. 
Rev. 632, 638 n.38 (1970).

23

and other services necessary to an adequate defense.” Id.
§ 1.5.13

Congress has acknowledged the constitutional mandate to 
provide indigent criminal defendants with necessary expert 
assistance, and it has responded to that mandate. The Criminal 
Justice Act, 18U.S.C. § 3006A(1983), was “designed to imple­
ment the sixth amendment guarantee of the assistance of coun­
sel.” Proffitt v. United States, 582 F.2d 854, 857 (4th Cir. 
1978), cert, denied, 447 U.S. 910 (1980); see 110 Cong. Rec. 445, 
18521 (1964); 109 Cong. Rec. 14224 (1963). Subsection (e) of 
that Act, 18 U.S.C. § 3006A(e), provides for the appointment 
and payment of experts “necessary to an adequate defense.” 
Testifying in support of the proposed Act, the President of the 
American Bar Association underscored the vital nature of this 
provision:

Even though [defense counsel] were zealous in performing 
their legal duties, without investigative services, when 
the assigned lawyer is met with all the prepared forces of 
the Government prosecution, they cannot meet it ade­
quately.

Criminal Justice Act: Hearings on H.R. 1027 Before Sub- 
comm. No. 5 of the House Comm, on the Judiciary, 88th 
Cong., 1st Sess. 126 (1963) (testimony of Sylvester C. Smith, 
Jr.). In presenting the conference committee report on the bill, 
Senator Hruska indicated Congress’ agreement:

An adequate representation commonly entails more 
than the mere presence of a lawy er in court. To prepare his 
defense, he may need investigative, expert, or other serv­
ices.

110 Cong. Rec. 18521 (1964).
Cognizant of the fact that expert assistance may be essentia', 

to the fair trial of some cases, eight of the United States Courts

Then Circuit Judge Burger was Chairman of the ABA Advisory 
Committee that proposed this standard and prepared the accompa­
nying statement. See ABA Standards, Compilation at 481 (1974).



24

of Appeals'  ̂and at least eighteen States15 have recognized the 
constitutional necessity of providing expert assistance for in­
digent criminal defendants in proper cases. The scholarly com-

14 See Williams v. Martin, 618 F.2d 1021 (4th Cir. 1980); Hintz v. 
Beto, 379 F.2d 937 (5th Cir. 1967); Matlock v. Rose, 731 F.2d 1236, 
1243-44 (6th Cir. 1984); United States ex rel. Robinson v. Pate, 345 
F.2d 691 (7th Cir. 1965), aff d in part and remanded in part on other 
grounds, 383 U.S. 375 (1966); Ray v. United States, 367 F.2d 258, 264 
(8th Cir. 1966), cert, denied, 386 U.S. 913 (1967); Mason v. Arizona, 
504 F.2d 1345 (9th Cir. 1974), cert, denied, 420 U.S. 936 (1975); 
Burger v. Zant, 718 F.2d 979, 981 (11th Cir. 1983), vacated and 
remanded on other grounds, 52 U.S.L.W. 3860 (U.S. May 29, 1984); 
UnitedStat.es v. Decoster, 624 F.2d 196,210(plurality), 277-79 & n.80 
(dissent) (P.C. Cir. 1976) (en banc). Cf. Christian v. United States, 
398 F.2d 517,519 n.7 (10th Cir. 1968) (such a right may exist). And see 
United States v. Johnson, 238 F.2d 565,572 (2d Cir. 1956) (Frank, J., 
dissenting), vacated and remanded, 352 U.S. 565 (1957).

15 See People v. Worthy, 109 Cal. App. 3rd 514, 167 Cal. Rptr. 402 
(1980);State v. Clemons, 168 Conn. 395,363 A.2d 33,38, cert, denied, 
423 U.S. 855 (1975) (semble); Pierce v. State, 251 Ga. 590,308 S.E.2d 
367 (1983); State v. Olin, 103 Idaho 391, 648 P.2d 203, 207 (1982); 
People v. Watson, 36 111. 2d 228, 221 N.E.2d 645 (1966); State v. 
Campbell, 215 N.W.2d 227, 229 (Iowa 1974); State v. Taylor, 202 
Kan. 202, 447 P.2d 806 (1968) (dicta); Young v. Commonwealth, 585 
S. W.2d 378,379 (Ky. 1979); State v. Madison, 345 So.2d 485,490 (La. 
1977); State v. Anaya, 456 A.2d 1255, 1261-62 (Me. 1983); Common­
wealth v. Bolduc, 10 Mass. App. 634, 411 N.E.2d 483, 486 (1980) 
(semble); Slate v. Rush, 46 N.J. 399, 217 A.2d 441 (1966); State v. 
Second Judicial District Court, 85 Nev. 241, 453 P.2d 421 (1969); 
People v. India, 32 N.Y.2d 230, 298 N.E.2d 65, 67 (dicta), cert, 
denied, 414 U.S. 850 (1973); State v. Parian, 303 N.C. 55,277 S.E.2d 
410,418(1981); Commonwealth v. Phelan, 427 Pa. 265,234 A.2d 540, 
547 (1967), cert, denied, 391 U.S. 920 (1968); State v. Murphy, 89 
S.D. 486, 234 N.W.2d 54, 56-57 (1975); State v. Cunningham, 18 
Wash. App. 517, 569 P.2d 1211 (1977).

Several other States have suggested that they would recognize 
such aright, but without deciding the question. See People v. McC va­
ry, 190 Colo. 538, 549 P.2d 1320, 1327 (1976); Himes v. State, 403

25

mentators have uniformly called for the acknowledgment ■ 
this constitutional right.16

Sensitive to their underlying constitutional obligation 
most States provide for the compensation of experts necessai 
to assist indigent criminal defendants. In addition to tho: 
States that have recognized a constitutional right to necessai 
expert assistance, see n. 15, supra, at least nineteen Stat< 
have followed the federal government’s lead and provided \ 
statute for the compensation of defense experts.17 Such a n

N.E.2d 1377,1379 (Ind. 1980). And many of the States that have he 
the appointment of experts not to be required have done so on tl 
ground that no adequate showing of need or prejudice was made 
the particular case. See, e.g., Tliessen v. State, 454 P.2d 341, 352-; 
(Alaska 1969), cert, denied, 396 U.S. 1029 (1970); State v. Chapma 
365 S.W.2d 551 (Mo. 1963); McKenzie v. Osborne, 640 P.2d 36 
374-75 (Mont. 1981).

,r' See Decker, Expert Services in the Defense of Criminal Case 
The Constitutional and Statutory Rights of Indigents, 51 U. Cin. 
Rev. 574 (1982); Note, Refusal to Provide Expert Witness for I 
digent Defendant Denies Equal Protection, 59 Wash. U.L.Q. 3 
(1981); Note, The Indigent Criminal Defendant and Defense Sex 
ices, A Search for Constitutional Standards, 24 Hastings L. J. 6 
(1973); Note, The Indigent’s Right to an Adequate Defense: Expe 
and Investigational Assistance in Criminal Proceedings, 55 Conn 
L. Rev. 632 (1970); Note, Right to Aid in Addition to Counself 
Indigent Criminal Defendants, 47 Minn. L. Rev. 1054, 1060 (196)

17 Sec Ariz. Rev. Stat. Ann. § 13 4013(B) (1978); Cal. Penal Co> 
§ 987.9 (West Supp. 1984) (capital cases); Hawaii Rev. Stat. § 802 
(1968); 111. Rev. Stat. ch. 38, § 113 3(d) (West Supp. 1983) (capit 
cases); Iowa Code Ann. § 813.2 (West 1979); Kan. Stat. Ann. § 2 
4508 (1981); Mass. Gen. Laws Ann. ch. 261, §§ 27A, 27C(4) (We 
Supp. 1984); Minn. Stat. Ann. § 611.21 (West Supp. 1984); Mo. Re 
Stat. § 600.150 (1978); Nev. Rev. Stat. § 7.135 (Supp. 1980); N.l 
Rev. Stat. Ann. § 604-A:6 (1974); N.M. Stat. Ann. § 31-16-13 (1971 
N.Y. County Law § 722-c (McKinney 1979); N.C. Gen. Stat. § 7. 
454 (1981); Or. Rev. Stat. § 135.055(4) (Supp. 1981); Pa. Stat. An 
tit. 19, § 784 (Purdon 1964 & Supp. 1983) (capital cases) (now supt



26

tionwide consensus "reflects, if it does not establish . . . the 
fundamental nature of that right.” Powell v. Alabama, supra, 
287 U.S. at 73. Cf. Enmund v. Florida, 458 U.S. 782, 789-97
(1982) (consensus of state legislatures “weights] heavily” in 
determining the meaning of the Eighth Amendment). Oklaho­
ma’s adamant refusal to provide reasonably necessary expert 
services to indigent defendants—even in capital cases—is out 
of step with nationally shared norms of fair criminal proce­
dure.18

The reasoning of this Court’s prior decisions dealing with the 
rights of indigent criminal defendants logically encompasses a 
right to expert services that are necessary to a fair defense. 
See, e.g., Griffin v. Illinois, 351 U.S. 12 (1956) (right to trial 
transcript); Gideon v. Wainivright, 372 U.S. 335 (1963) (right 
to counsel at trial; Douglas v. California, 372 U.S. 353 (1963) 
(right to counsel on appeal); Roberts v. LaVallee, 389 U.S. 40 
(1967) (right to transcript of preliminary hearing); McMann v. 
Richardson, 397 U.S. 759 (1970) (right to effective counsel); 
Bounds v. Smith, 430 U.S. 817 (1977) (right of prisoners to 
access to law libraries or professional assistance in habeas 
corpus proceedings). The common rationale of these cases is 
that indigent defendants and prisoners must have an “ade-

seded by the establishment of a statewide public defender system, 
see Pa. Stat. Ann. tit. 16, § 9960 el seq.) (Purdon Supp. 1983); S.C. 
Code Ann. § 17-3-80 (Law. Co-op. 1976); Tex. CodeCrim. Proc. Ann. 
art. 26.05 § 1 (Vernon 1979); W. Va. Code § 51-11-8 (1981).

Several additional States provide specifically for the compensation 
of defense psychiatrists in cases where the insanity defense is raised. 
See Fla. R. Crim. Pro. 3.216(a) (West Supp. 1983); Ind. Code Ann. 
§ 35-5-2-2 (Bums 1975); Mich. Comp. Laws Ann. § 768.20a(3) (1982); 
Wash. Rev. Code §§ 10.77-020(2), 10.77.060 (1980).

18 Oklahoma is not, however, altogether alone in its assertion that 
an indigent has no right to expert assistance. See Dutton v. State, 434 
So.2d 853,856 (Ala. Crim. App. 1983); Davis v. State, 374 So.2d 1293, 
1298 (Miss. 1979); State v. Williams, 657 S.W.2d 405, 411 (Tenn. 
1983); Martin v. Commonwealth, 221 ,Va. 436, 271, S.E.2d 123, 
129-30 (1980).

27

quate and effective” (Griffin, 351 U.S. at 20) or “meaningfu. 
(Bounds, 430 U.S. at 828) opportunity to litigate their claim' 
As we have shown, the assistance of an expert may in som 
cases be just as essential to a fair trial as the assistance of 
professionally competent attorney or access to a transcript ( 
prior proceedings. It therefore follows that the States ar 
constitutionally obligated to provide expert assistance to ir 
digent criminal defendants in such cases.

Indeed, that conclusion follows a fortiori from this Court 
decision in Little v. Streater, 452 U.S. 1 (1981). In that case, th 
State assisted the plaintiff in bringing a paternity suit again: 
the defendant, who was indigent. He requested the State t 
pay the cost of blood grouping tests that could exonerate hin 
the State refused. 452 U.S. at 3-5. This Court held that th 
defendant had a due process right to a State-funded blood tes' 
Id. at 17. The Court reasoned that he had “substantial” ir 
terests at stake in the possibly forced imposition of famili; 
bonds; that the risk of an erroneous determination in the al 
sence of blood tests was “not inconsiderable”; and that th 
State’s Financial interest in avoiding payment was insufficier 
to overcome his interest in avoiding an erroneous adjudicatio 
of paternity. Id. at 13-16.

The same reasoning applies with even greater force in th 
context of a criminal prosecution, where the defendant’s ir 
terest is in his liberty or even, as here, in his very life. To sa 
that an erroneous determination brings about consequence 
that are both serious and irreversible is but to understate 
Balanced against these interests and these consequences ; 
only the State’s interest in fiscal economy. As in Little \ 
Streater and as in the Griffin-Douglas line of cases, that ir 
terest "is hardly significant enough" to overcome the defenc 
ant’s interests. Little v. Streater, supra, 452 U.S. at 16. Mon 
over, the State itself has a very strong interest in the fair an 
accurate adjudication of criminal cases. As this Court ha 
reminded us:

It is critical that the moral force of the criminal law not b
diluted by a [process] that leaves people in doubt whethe



28

innocent men are being condemned. It is also important in 
our free society that every individual going about his 
ordinary affairs have confidence that his government can­
not adjudge him guilty of a criminal offense without con­
vincing a proper factfinder of his guilt with utmost cer­
tainty.

In re Winship, 397 U.S. 358, 364 (1970). When expert analysis 
and testimony is absent from the trial of a case where it was 
necessary, there cannot be “utmost certainty”—or even much 
confidence—about the accuracy of the result. Where the ab­
sence of such analysis and testimony results only from the 
poverty of the defendant, it is constitutionally intolerable.

Oklahoma has recognized the necessity of expert services in 
the most meaningful manner—by providing for State payment 
of experts’ fees when the experts are hired by the prosecution. 
Okla. Stat. tit. 20 § 1304(b)(3) (1980), App. 6a. The State’s 
adamant refusal to provide necessary expert services to in­
digent criminal defendants—even in capital cases—ignores its 
constitutional obligation to provide equal justice under law.

B. An Expert Examination of Petitioner’s Mental Condition 
At The Time Of The Offense Was Necessary In This Case.

Glen Ake’s constitutional claim to a psychiatric examination 
on the question of his sanity at the time of the offense was well 
founded, for that question was seriously in issue and it re­
quired expert assistance to be properly determined.

Ake’s mental state at arraignment was so obviously abnor­
mal that the judge s?ta sponte ordered him committed for 
observation. He was found incompetent to stand trial, and six 
weeks later was rendered “competent” only by being sedated 
with large doses of Thorazine three times a day during the 
trial. The doctors who examined him all concluded that he was 
suffering from paranoid schizophrenia at a psychotic level. 
J.A. 33, 42, 49. Dr. Allan, a court-appointed psychiatrist who 
examined Ake to determine his competency to stand trial, 
testified that Ake’s mental illness may have dated from child­
hood, and that the illness may have been “apparent” on the day 
of the crime. J.A. 38.

29

Under Oklahoma law, a defendant has only the burden 
raising a reasonable doubt of his sanity at the time of the crin 
in order to put his mental condition in issue. Ake v. State, 6< 
P.2d at 10, J.A. 78. In light of this standard and the eviden< 
just reviewed, Ake’s mental condition—his only serious d 
fense to these capital charges—was clearly in issue. The fa 
that no expert testimony was presented bearing more speci: 
cally on his mental state on the day of the crime is attributab 
solely to the State’s refusal to provide the means for him to 1 
examined on that subject by even a single psychiatrist < 
psychologist.19

The assistance of a psychiatrist or a psychologist mil in mo 
cases be essential to the fair preparation and presentation of t 
insanity defense. Just as there are “few defendants charge 
with crime, few indeed, who fail to hire the best lawyers the 
can get to prepare and present their defenses,”. Gideon ’ 
Wainwriglit, 372 U.S. 335, 344 (1963), there are few—if any- 
pecunious defendants charged with capital crimes who wou 
fail to obtain the services of a mental health professional ( 
assist them if their only serious defense to those charges was

19 The State’s conduct in refusing to provide Ake with the means 
obtaining a psychiatric opinion as to his sanity at the time of tl 
crime, and then arguing to the jury that the absence of such test 
monv demonstrated that there was not even a reasonable doul 
about his sanity (J.A. 55), cannot be squared with due process. 1 
Griffin v. California, 380 U.S. 609 (1965), this Court held that t) 
Fifth and Fourteenth Amendments were violated by a prosecutor 
comment on a defendant’s refusal to testify. And in Doyle v. Olii< 
427 U.S. 610 (1976), the Court ruled that comment on a defendant 
silence at the time of arrest was a denial of due process. The injustk 
here is even more egregious, for Ake’s failure to present psychiatr 
testimony about his mental condition at the time of the crime was n< 
even his volitional choice. He did all he could to obtain such test 
monv. The State, which could have made such testimony possible 
rebuffed his request, and then urged the jury to penalize Ake for it 
absence. On this ground alone, Ake’s conviction should be reversec



30

plea of insanity. As with counsel, this is “the strongest indica­
tion . . . that [experts] are necessities, not luxuries.” Id.

In other contexts, the State of Oklahoma fully recognizes the 
necessity of psychiatric testimony when issues of mental condi­
tion are before its courts. In Oklahoma (as in most States) a 
person may not be civilly committed—a serious deprivation of 
liberty, but not comparable to a conviction for murder—based 
on lay testimony alone, but only after an examination by two 
qualified experts who are paid a fee for their services by the 
State. Okla. Stat. tit. 43A §§ 54.4(F), 56 (1980). And many 
States are so strongly of the view that a psychiatric examina­
tion is the only reliable means of determining a defendant’s 
mental condition at the time of an alleged offense that they 
compel a defendant who raises the defense of insanity to sub­
mit to an examination by the government’s expert. See Estelle 
v. Smith, 451 U.S. 454, 465 (1981) (citing cases).

The reasons why expert assistance is essential in preparing 
and presenting an insanity defense are not obscure. As this 
Court has noted, the symptoms of insanity are “elusive and 
often deceptive.” Solesbee v. Balkcom, 339 U.S. 9, 12 (1950). 
The “common sense” of lay witnesses and jurors “may be the 
superficial rationalizations by which we avoid the real and 
deeper meanings of the human mind.” But persons of in­
telligence “recognize this and are prepared to accept explana­
tions of human behavior and natural phenomena that seem 
esoteric and enigmatic.” Diamond & Louisell, The Psychiatrist 
as an Expert Witness: Some Ruminations and Speculations, 
63 Mich. L. Rev. 1335, 1343 (1965).

Like an attorney, an expert psychiatrist or psychologist can 
provide indispensable assistance both before and during trial. 
Indeed, as with an attorney, pre-trial assistance may often be 
the more crucial. An expert is necessary not only to conduct an 
examination of the defendant, but to make the initial 
determination of what tests and examinations need to be con­
ducted. Elements of a patient’s medical or personal history 
that may seem insignificant to a lawyer may have great mean­
ing to a psychiatrist or psychologist; without an expert’s help, a

31

lawyer may not even know what questions to ask. See Gold 
stein & Fine, The Indigent Accused, the Psychiatrist, and tin 
Insanity Defense, 110 U. Pa. L. Rev. 1061, 1066 (1962). Foi 
similar reasons, the expert can enable the defense attorney 
better to anticipate the testimony of the prosecution experts 
so as to prepare for cross-examination and rebuttal. F. Bailej 
& H. Rothblatt, Investigation and Preparation of Crimina, 
Cases 467 (1970).

And at trial, an expert can convey and explain his findings tc 
the judge and jury in a manner that lay witnesses just cannol 
match. “All juries will be impressed by lucid explanations o; 
the forces, drives and compulsions which affect the controls o; 
an abnormal personality which has become separated from 
reality.” Blocker x. United States, 288 F.2d 853,864 (D.C. Cir. 
1961) (Burger, J., concurring). But lucid explanations of sue! 
forces, drives and compulsions cannot be presented by lav 
witnesses who do not themselves have an educated under­
standing of such phenomena. In short, the defendant whose 
defense is insanity simply “cannot expect to succeed unless he 
can present an expert witness.” Goldstein & Fine, supra, at 
1063. As Justice Brennan once wrote, an attorney appointed tc 
defend such a case without access to expert assistance car, 
often do little but “throw' up his hands in despair.” Brennan, 
Law and Psychiatry Must Join in Defending Mentally III 
Criminals, 49 A.B.A.J. 239, 242 (1963).

In circumstances like these, the absence of an expert witness 
“goes to the very trustworthiness of the criminal justice proc­
ess.” United States v. Theriault, 440 F.2d 713, 717 (5th Cir. 
1971) (Wisdom, J., concurring), cert, denied, 411 U.S. 984 
(1973). Thus the Court’s analysis in Gideon v. Wainwright and 
Powell v. Alabama applies cogently to this case, mutatis 
mutandis:

The right to be heard w’ould be, in many cases, of little 
avail if it did not comprehend the right to [expert assist­
ance]. Even the intelligent and educated [attorney] has 
small and sometimes no skill in the science of [psy­
chiatry], . . . [H]e is incapable, generally, of determining 
for himself w hether [the client was sane or insane at the



32

time of the crime]. He is unfamiliar with the [necessary 
psychological and physiological tests]. Left without the 
aid of [an expert, his client] may be . . . convicted . . .  on 
evidence [which could effectively have been rebutted]. He 
lacks both the skill and knowledge adequately to prepare 
his [client’s] defense, even though he have a perfect one. 
He requires the guiding hand of[an expert] at every step 
in the proceedings against [his client]. Without it, though 
[the client] be not guilty, he faces the danger of conviction 
because he does not know how to establish his innocence.

Gideon v. Wainwright, supra, 372 U.S. at 344-45, quoting 
Powell v. Alabama, supra, 287 U.S. at 68-69.

This Court and other courts have acknowledged the in­
dispensability of mental health professionals in factfinding in­
quiries in their areas of expertise. In Addington v. Texas, 441 
U.S. 418 (1979), a case involving the constitutional require­
ments for civil commitments—where only a person’s liberty, 
not his life, is at stake—the Court evinced its awareness of the 
“subtleties and nuances of psychiatric diagnosis” which is 
largely “based on medical ‘impressions’ drawn from subjective 
analysis and filtered through the experience of the diagnosti­
cian.” 441 U.S. at 430. The Court therefore appreciated that 
the question

[w]hether the individual is mentally ill . . . turns on the 
meaning of the facts which must be interpreted by expert 
psychiatrists and psychologists.

Id. at 429 (emphasis added).
Lower courts that have considered the question presented 

here—the necessity of psychiatric assistance in a criminal case 
where the defense is insanity—have “long recognized a partic­
ularly critical interrelation between expert psychiatric assist­
ance and minimally effective representation of counsel.” 
United States v. Edwards, 488 F.2d 1154,1163 (5th Cir. 1974). 
Thus,

a trial, without expert evidence as to sanity, which found 
[the defendant] sane and resulted in a life sentence is so 
lacking in fairness as to be a denial of liberty without due 
process of law.

33

Bush v. McCollum, 231 F. Supp. 560, 565 (N.D. Tex. 1 
affd per curiam, 344 F.2d 672 (5th Cir. 1965). Accord Pr 
v. United States, 582 F.2d 854,857 (4th Cir. 1978), cert, de 
447 U.S. 910 (1980); United States v. Lincoln, 542 F.2d 
750 (8th Cir. 1976), cert, denied, 429 U.S. 1106 (1977); U 
States v. Bass, 477 F.2d 723, 725 (9th Cir. 1973); United S 
v. Chavis, 486 F.2d 1290, 1291 (D.C. Cir. 1973); Bnn  
Alabama, 465 F.2d 446 (5th Cir. 1972), cert, denied, 409 
1130 (1973). The failure of defense counsel to request a 
chiatric examination in such circumstances may amou 
incompetent representation. See Beavers v. Balkcom 
F.2d 114 (5th Cir. 1981); Ex Parte Duffy, 607 S.W.2d 507 
Crim. App. 1980); People v. Bryant, 77 Mich. App. lOt 
N.W.2d 162 (1977).20

In a case much like this one, where a defendant had 
convicted over a plea of insanity in a capital case uithou 
psychiatric testimony as to his sanity at the time of the c 
the experienced trial judge commented:

It seems to this Court difficult if not impossible to say 
arguments, or theories, or defenses might have bee 
veloped with adequate expert assistance. Mr. Blal 
ceived the benefit of no expert help in the preparat 
his defense and none in the testing of the prosecu 
case. These circumstances seem to the Court to amoi

20 As noted above, the Oklahoma Court of Criminal Appeals 
that Ake had not raised even a reasonable doubt of his sanit; 
hard to see what more Ake could have done to raise that issue u 
the help of an expert; see n.10, supra. It appears to be the ca: 
Oklahoma in effect requires the testimony of an expert even to 
reasonable doubt about sanity. Cf. Bills v. State, 585 P.2c; 
1371-72 (Okla. Crim. App. 1978) (trial court properly refused 
jury instruction on insanity because defendant, who had been 
ted to mental hospital four times in six years prior to crim 
presented “no evidence” tending to rebut the presumption of s 
The absence of fundamental fairness in refusing to provid 
chiatric assistance to an indigent defendant in those ciicumsta 
plain.



34

a situation where essentially no defense at all [was] pre­
sented.

Based on this analysis, he concluded:
[I]n a capital case, a defendant whose sanity at the time of 
the alleged crime is fairly in question, has at a minimum 
the constitutional right to at least one psychiatric exami­
nation and opinion developed in a manner reasonably 
calculated to allow adequate review of relevant, available 
information and at such a time as will permit counsel 
reasonable opportunity to utilize the analysis in prepara­
tion and conduct of the defense.

Blake v. Zant, 513 F. Supp. 772, 787 (S.D. Ga. 1981) (Eden- 
field, J.). While reversing on other grounds, the Eleventh 
Circuit specifically adopted these views as its own. Burger v. 
Zant, 718 F.2d 979, 981 (11th Cir. 1983), vacated and reman­
ded on other grounds, 52 U.S.L.W. 3860 (U.S. May 29, 1984).

Bush v. Texas, 372 U.S. 586 (1963), in which this Court 
previously granted certiorari on the same question presented 
here, exemplifies the difference that a proper expert examina­
tion can make. James Bush, an indigent, was tried and, over his 
plea of insanity, convicted of theft and incarcerated. As in this 
case, the trial court had refused to provide any psychiatric 
examination with respect to his sanity at the time of the 
offense. Bush v. State, 172 Tex. Crim. 54, 353 S.W.2d 855 
(1962). Two years later, virtually on the eve of argument in this 
Court, the State of Texas finally had Bush examined by a 
psychiatrist. The finding of that examination was that Bush 
“was only partly or not at all responsible for his acts, for very 
many years.” 372 U.S. at 589. Upon Texas’ representation that 
Bush would be granted a new trial at which the psychiatric 
evidence would be available, the case was remanded. Id. at 
590. Had such an examination been made available to Bush 
before his trial, it is more than likely that he would not have 
spent those two years at a Texas prison farm.21

21 In fact, Bush was not afforded a new trial on remand. His sub­
sequent petition for a writ of habeas corpus was granted by the 
United States District Court. Rush v. McCollum, 231 F. Supp. 560 
(N.D. Tex. 1964), affd per curiam, 344 F.2d 672 (5th Cir. 1965).

35

A belated psychiatric examination was able to establish 
James Bush’s insanity at the time of the offense. But this will 
not always be the case. Like the justice lost by the absence of 
counsel before and at trial, the justice lost by the absence of 
necessary expert assistance cannot easily be recovered in post­
conviction proceedings. The sooner after the relevant events a 
mental examination is performed, the more reliable it will be. 
See Wright v. United States, 250 F.2d 4, 8-9 (D.C. Cir. 1957); 
cf Drope v. Missouri, 420 U.S. 162, 183 (1975). Providing 
indigent defendants whose sanity is seriously in issue with 
prompt expert examination on that question will not only pro­
vide greater protection for the constitutional rights of the 
accused, but will substantially serve the basic “function of the 
legal process . . .  to minimize the risk of erroneous decisions.” 
Addington v. Texas, 441 U.S. 418, 425 (1979). And it will 
improve the ability of the States to obtain final and con­
stitutionally valid convictions in cases where the accused is in 
fact guilty. For when a criminal trial properly "concentrates 
society’s resources at one ‘time and place in order to decide, 
within the limits of human fallibility, the question of guilt or 
innocence,’ ” then the likelihood that there will have to be a 
retrial, with its attendant social costs, will be minimized. En­
gle v. Isaac, 456 U.S. 107, 127-28 (1982), quoting Wainwright 
v. Sykes, 433 U.S. 72, 90 (1977). In the long run, justice will be 
made more speedy, more certain, and less expensive to the 
States if indigent defendants are provided with necessary ex­
pert assistance before trial. See Brief for the State of Oregon as 
Amicus Curiae, Gideon v. Wainwright, No. 155, O.T. 1962.

In this case, the trial court and the State of Oklahoma relied 
on this Court’s decision in United States ex rel. Smith v. Baldi, 
344 U.S. 561 (1953), for the proposition that there is “no con­
stitutional right to have a psychiatric examination of a defend­
ant’s sanity at the time of the offense.” Opposition to Petition 
for Writ of Certiorari at 8; J.A. 20 (trial court).

But Baldi cannot stand for that proposition, for in Baldi a 
court-appointed psychiatrist did examine the defendant as to 
his mental state at the time of the crime, and testified on that 
subject at trial. 344 U.S. at 568. This fact appears to have been



36

crucial to the Court’s holding that no further psychiatric assist­
ance to the defendant was required. Id. As noted above, Ake 
moved in the alternative for such an examination, but he was 
denied even that. See n.4, supra. Thus, Baldi can provide no 
support for an affirmance here, since in this case there was 
never any examination of the defendant with respect to his 
mental condition at the time of the crime by anybody—a point 
the prosecution emphasized and reemphasized to the jury in 
arguing that Ake’s insanity defense should fail. J.A 55.

In Baldi the Court said: “Psychiatrists testified. That suf­
fices.” 344 U.S. at 568. But surely it would not have sufficed if 
their testimony had consisted, like that of the doctors here, 
only of statements that they had made no examination and had 
no opinion on the issue before the court.

Baldi may stand for the proposition that where a defendant 
has been examined by a neutral, court-appointed expert, he is 
not constitutionally entitled to the appointment or payment of 
an additional expert to assist him in his defense. But Baldi was 
decided at a time when indigent defendants in State courts had 
no constitutional right even to counsel. See Betts v. Brady, 316 
U.S. 455 (1942). The law of due process and equal protection 
has developed considerably since that time. See, e.g., Gideon 
v. Wainwright, supra, overriding Betts v. Brady. Judge Wis­
dom was therefore clearly correct when he observed that Baldi 
has been “severely undercut” by this Court’s decisions since 
Griffin v. Illinois, supra, redrew  v. Wainwright, 590 F.2d 
1383, 1390 n.6 (5th Cir.), cert,, denied, 444 U.S. 943 (1979).

This case squarely presents the question whether an in­
digent criminal defendant is constitutionally entitled to expert 
assistance reasonably necessary to his defense. Such assist­
ance was manifestly necessary in this case, and was denied— 
perhaps at the cost of the defendant's life. For all the reasons 
presented above, the Court should take this occasion to hold 
that the Constitution guarantees such assistance when it is 
necessary to a fair trial. To the extent, if any, that the decision

37

in United States ex rel. Smith v. Baldi is inconsistent with that 
proposition, it should be overruled.22

II. IN A CAPITAL CASE. THE STATE MAY NOT DENY 
AN INDIGENT DEFENDANT THE MEANS OF 
PRESENTING EVIDENCE IN MITIGATION OF 
PUNISHMENT AND IN REBUTTAL OF THE STATE’S 
EVIDENCE OF AGGRAVATING CIRCUMSTANCES

Because “a consistency produced by ignoring individual dif­
ferences is a false consistency,” Eddings v. Oklahoma, 455 
U.S. 104, 112 (1982), this Court has rigorously insisted that 
there be an individual sentencing procedure in each capital 
case which “ensures that the sentencing authority is given 
adequate information” about the offender. Gregg v. Georgia, 
428 U.S. 153, 195 (1976)(emphasis added). As the Court has 
explained, “ ‘the fundamental respect for humanity underlying 
the Eighth Amendment. . . requires consideration of the char­
acter and record of the individual offender . . .  as a con-

22 Our submission is not that State-paid experts should be available 
to indigent defendants on demand, or that the Constitution requires 
the States to provide indigents with the same quantum of assistance 
that a millionaire might choose to mobilize for his defense. We sug­
gest that the Criminal Justice Act’s constitutionally-grounded stand­
ard of assistance “necessary to an adequate defense,” 18 U.S.C. 
§ 3006A(e) (1983), and the workable criteria developed by the federal 
courts (and by many State courts operating under similar statutes, 
see n.17, supra) to implement that standard, may appropriately be 
applied to implement the constitutional guarantee of due process. 
See, e.g., United States v. Theriault, 440 F.2d 713, 716-17 (5th Cir. 
1971) (Wisdom, J., concurring) (indigent defendant entitled to such 
expert assistance as a reasonable attorney would engage for a client 
who could affird to pay for it), cert, denied, 441 U.S. 984 (1973); 
United States v. Bass, 477 F.2d 723, 725 (9th Cir. 1973) (adopting this 
standard): Brinkley v. United States, 498 F.2d 505, 508-10 (8th Cir. 
1974) (same). Compare United States v. Durant, 545 F.2d 823 (2d 
Cir. 1976) (appointment of expert was required where fingerprint 
evidence was pivotal and was subject to dispute), with United States 
v. Harris, 542 F.2d 1283, 1315 (7th Cir. 1976) (use of psychologist to 
assist in jury selection not necessary to an adequate defense).



38

stitutionally indispensable part of the process of inflicting the 
penalty of death.’ ” E elding s v. Oklahoma, supra, at 112, quot­
ing Woodson v. North Carolina, 428 U.S. 280, 304 (1976). Just 
last Term, the Court emphasized that

what is essential is that the jury have before it all possible 
relevant information about the individual defendant 
whose fate it must determine.

Barefoot v. Estelle, 103 S.Ct. 3383, 3396 (1983), quoting Jurek 
v. Texas, 428 U.S. 262, 276 (1976) (emphasis added).

In this case the jury did not receive essential information 
about defendant Ake’s character and personality, because of 
the State’s refusal to provide him with the expert assistance 
necessary for the preparation and presentation of such in­
formation.

The denial of Ake’s motion for a psychiatric examination 
disadvantaged him at his sentencing hearing in two ways: he 
was unable to put before the jury as mitigating evidence any 
testimony about his mental condition at the time of the crime or 
about the psychological effects of the child abuse he had suf­
fered at the hands of his father, and he was unable to rebut the 
State’s evidence, presented through the testimony of psychia­
trists, that he was highly likely to commit future acts of 
violence.23

The sentencing “hearing” in this case was really no hearing 
at all. The defense rested about thirty seconds after the State 
rested. Tr. 703-04. Without access to expert assistance, the 
defendant was unable to present to the jury the kind of in­
formation that this Court has properly regarded as essential to 
a “measured, consistent application” of the death penalty. 
Eddings v. Oklahoma, supra, 455 U.S. at 111.

23 Ake was unable to testify in his own behalf on these subjects, 
apparently because of the sedating effects of the Thorazine with 
which he was being treated. See Part III, infra.

39

A. An Indigent Defendant Facing The Death Penalty Is Enti­
tled To Reasonably Necessary Expert Assistance To Pre­
pare And Present Evidence In His Favor At The Sentenc­
ing Hearing.

“Permitting an indigent capital defendant to introduce 
mitigating evidence has little meaning if the funds necessary 
for compiling the evidence are unavailable.” Westbrook v. 
Zant, 704 F.2d 1487, 1496 (11th Cir. 1983).

Expert assistance is no less essential, and therefore must be 
no less available, at a sentencing hearing than it is at trial. As 
this Court recognized just last month:

A capital sentencing proceeding . . .  is sufficiently like a 
trial in its adversarial format. . . that counsel’s role in the 
proceeding is comparable to counsel’s role at trial—to 
ensure that the adversarial testing process works to pro­
duce a just result under the standards governing decision.

Strickland v. Washington, No. 82-1554, slip. op. at 16 (U.S. 
May 14, 1984).

Evidence about the defendant’s mental state at the time of 
the crime is highly relevant at sentencing. Three of the poten­
tially mitigating circumstances that are specifically recognized 
in Oklahoma relate to the defendant’s state of mind: whether 
he was “under the influence of extreme mental or emotional 
disturbance,” whether he “believed [that there was] a moral 
justification or extenuation for his conduct,” and whether his 
“capacity . . .  to appreciate the criminality (wrongfulness) of 
his conduct or to conform his conduct to the requirements of 
the law was impaired as the result of mental disease or in­

toxication.” Tr.725-26.24 One or more of these circumstances 
may well have been present in this case, see id., but withoutthe 
assistance of a psychiatrist or psychologist to examine Ake on

24 State statutes that specify mitigating factors which must be 
considered by the sentencing authority “invariably” include mental 
disorder. Liebman & Shepard, Guiding Capital Sentencing Discre­
tion Beyond the “Boiler Plate": Mental Disorder as a Mitigating 
Factor, 66 Georgetown L. J. 757, 795 (1978).



40

these points and to present her findings in court, the evidence 
of these mitigating circumstances—whatever it may have 
been—was never even discovered, much less provided to the 
jury.

In a case like this, “it is clear that the defendant’s case-in­
mitigation—if there is to be one at all—must be built on a 
foundation of psychiatric testimony.’’ Bonnie, Psychiatry and 
the Death Penalty: Emerging Problems in Virginia, 66 Va. L. 
Rev. 167, 181 (1980). As at the first stage of the trial, the 
absence of such testimony goes directly to the accuracy and 
objectivity of the decision-making process. As Oklahoma rec­
ognizes by the specific inclusion of these mitigating circum­
stances in a judge’s charge to a sentencing jury, it might well be 
a miscarriage of justice to execute a person who, although not 
legally insane at the time of the crime, was under extreme 
mental disturbance or had diminished mental capacities. See 
Cox v. State, 644 P.2d 1077, 1079 (Okla. Crim. App. 1982).* 
And, as Oklahoma concedes, “[pjsychiatfic testimony of the 
defendant’s mental or emotional state at the time of the killing 
may very likely influence the ju ry’s decision.” Id. (emphasis 
added). Yet by refusing to provide an indigent defendant with 
the services of a person expertly qualified to diagnose and 
explain such mental and emotional states, Oklahoma virtually 
guarantees that the jury will not have access to the evidence 
most relevant to those considerations. In these circumstances, 
the State’s refusal is a denial of due process. State v. Wood, 648 
P.2d 71, 87-88 (Utah), cert, denied, 103 S.Ct. 341 (1982).

In Oklahoma, the prosecutor must make a discretionary 
decision whether to seek the death penalty. Tr. 717. Here the 
State made the decision to seek Glen Ake’s death, and also 
decided to refuse him the resources with which to show that,

25 In this case, however, the prosecution argued to the jury (when 
there was no longer any opportunity for rebuttal) that in rejecting 
Ake’s insanity defense they had necessarily rejected any mitigating 
circumstance based on mental illness or diminished capacity. See Tr. 
730.

41

under the State's own standards, he did not deserve that 
ultimate penalty.

If Glen Ake had been able to afford an expert witness, his 
sentencing hearing could have been a meaningful proceeding. 
Deprived of assistance, it was but a “meaningless ritual.” 
Douglas v. California, supra, 372 U.S. at 358.

B. Where The State Uses Psychiatric Testimony To Estab­
lish The Aggravating Circumstance Of Predictable Fu­
ture Violence, It May Not Deny An Indigent Defendant 
Psychiatric Assistance To Rebut That Testimony.

In Barefoot v. Estelle, 103 S.Ct. 3383 (1983), this Court 
ruled that psychiatric testimony by the State on the question of 
future dangerousness was acceptable evidence at a capital 
sentencing hearing. In the Court’s view, “jurors should not be 
barred from hearing the views of the State’s psychiatrists 
along with the opposing views of the defendant's doctors.” 103 
S.Ct. at 3397.

Here, the jurors were effectively barred from hearing the 
views of the defendant’s doctors to rebut the condemning 
expert opinions offered by the State, because the defendant 
could not afford to hire a doctor and the State would not assist 
him in obtaining one.*

Oklahoma relied on the doctors’ testimony to argue that 
Ake, if allowed to live, would predictably commit future acts of 
criminal violence. Tr. 714, 717. It is impossible to know 
whether Ake could have obtained a contrary expert opinion 
from a different psychiatrist. He—and the jury—were never 
given an opportunity to find out.

Mindful that there is “a qualitative difference between death 
and any other permissible form of punishment,” this Court has

» In Barefoot, the Court noted that Texas provided payment for 
expert testimony in cases of indigence, and that there was thus no 
contention that the State had refused to provide an expert for the 
defendant. 103 S.Ct. at 3397 n.5. This case thus presents the question 
not raised in Barefoot.



42

affirmed that “ ‘there is a corresponding difference in the need 
for reliability in the determination that death is the appropri­
ate punishment in a specific case.’ ” Zant v. Stephens, 103 
S.Ct. 2733, 2747 (1983), quoting Woodson v. North Carolina, 
428 U.S. 280,305 (1976). Denying Ake's motion for psychiatric 
assistance27 created a strong risk that the jury would impose 
the death penalty despite the existence of factors—unknown to 
them—that would call for a less severe penalty.

“When the choice is between life and death, that risk is 
unacceptable and incompatible with the commands of the 
Eighth and Fourteenth Amendments.” Lockett v. Ohio, 438 
U.S. 586, 605 (1978) (plurality opinion of Burger, C.J.).

III. PETITIONER’S DRUGGED CONDITION DURING 
TRIAL DEPRIVED HIM OF THE ABILITY TO 
ASSIST COUNSEL AND PREJUDICED HIM IN THE 
EYES OF THE JURY

Throughout his trial, Ake was medicated with Thorazine, 
administered in doses of 200 milligrams, three times a day. 
J.A. 26, 49, 52,Akev. State, 663 P.2d 1, 6, J.A. 71. Ake “stared 
vacantly ahead throughout the trial,” Id. at 7 n.5, J.A. 73. He 
remained mute and did not speak with his attorneys. Id. at 6, 
J.A. 71. He did not testify at the trial or at the sentencing 
hearing.

Unable to ignore these facts, the Court of Criminal Appeals 
avoided their implications by hypothesizing, without any rec­
ord support and contrary to the unequivocal testimony of the 
State’s own Chief Forensic Psychiatrist, J.A. 48, 51, that Ake 
might have been feigning mental illness to bolster his insanity 
defense. 663 P.2d at 7 n.4, 8, J.A. 72, 74. It is far more likely, 
however, that Ake was simply displaying the effects and side

27 Ake’s motion was not directed specifically at the sentencing 
proceedings, but the jury, at the penalty stage, may consider the 
psychiatric evidence presented at the first stage of the trial as a 
mitigating factor. See Smith v. Estelle, 445 F. Supp. 647, 664 (N.D. 
Tex. 1977), affd, 602 F.2d 694 (5th Cir. 1979), affd, 451 U.S. 454 
(1981).

43

effects of the Thorazine he was being given. These effects ar 
side effects were, in this case, incompatible with competent 
to stand trial or with a fair trial by jury.

Thorazine is a strong psychoactive drug widely used in tl 
treatment and control of persons suffering from schizophreni 
Levitt & Krikstone, The Tranquilizers, in Psychopliarnn 
cology: A Biological Approach 117, 126, 131 (R. Levitt e> 
1975). In many cases, its effect is highly therapeutic, reducir 
hostility and agitation, holding delusions and hallucinations 
remission, and generally allowing a patient’s thought pro 
esses to become reorganized. Id. at 131; J. Neale & r 
Oltmanns, Schizophrenia 410 (1980). It is also true, howeve 
that the simple control of behavior remains a major purpose f< 
its use. In re Roe, 383 Mass. 415, 421 N.E.2d 40, 53 (1981 
Plotkin, Limiting the Therapeutic Orgy: Mental Patient 
Right to Refuse Treatment, 72 Nw. U. L. Rev. 461,478(1977

For some patients, discontinuance of medication will lead 1 
a reappearance of their psychotic symptoms, so that tri 
would be impossible except under medication. Scrignar, 7Ya; 
quilizers and the Psychotic Defendant, 53 A.B.A.J. 43, < 
(1967); Winick, Psychotropic Medication and Competence 
Stand Trial, 3 Am. Bar. Foundation Research J. 769, 772-' 
(1977). In many cases, then, it may be in the best interest of 
criminal defendant, as well as society, for a person accused 
crime to stand trial while receiving psychoactive medicatioi 
Particularly in non-capital cases, where the defendant’s chok 
may be between incarceration for a term of years (if convictei 
and indefinite commitment to a mental hospital, the risk > 
standing trial under medication may be neither unfair nc 
unwelcome to the defendant. See Winick, supra, at 789-93; I 
Roesch & S. Golding, Competency to Stand Trial 39-43 (1980

In some cases, however, the effects of drug treatment will 1 
incompatible with trial. See id. at 42. This was such a case



44

A. The Trial Court Failed To Inquire Into Petitioner’s Com­
petency When Such An Inquiry Was Constitutionally Re­
quired.

In Drope v. Missouri, 420 U.S. 162 (1975), and Pate v. 
Robinson, 383 U.S. 375 (1966), this Court ruled that a person 
who cannot understand and participate intelligently in the 
proceedings against him may not be put to trial.

Petitioner, who had been adjudged incompetent to stand 
trial in April, was returned to the court as “competent" in May 
after the administration of Thorazine. J.A. 3, 16. No judicial 
finding was ever made that he had regained competency and no 
inquiry was ever made into the cause of his appearance and 
conduct at trial. Had such an inquiry been made, it would have 
disclosed that he was far from competent.

The trial judge in this case was not unaware of the facts. 
Ake’s counsel alerted him to their client’s inability to communi­
cate, see, e.g., J.A. 26-27; the judge himself observed on the 
record that there was “all along a real question as to whether 
the man [Ake] had any kind of mental capacity.” Tr. 495. It was 
the court’s constitutional duty “to observe procedures ade­
quate to protect a defendant’s right not to be tried or convicted 
while incompetent to stand trial.” Drope, supra, at 172. Yet 
the court failed to conduct any inquiry into Ake's competency. 
Such a failure to inquire where, as here, the circumstances 
“created a sufficient doubt of [Ake’s] competence to stand trial 
to require further inquiry,” Drope, 420 U.S. at 180, denied Ake 
a fair trial and mandates that his conviction be reversed. Id. at 
183; Pate v. Robinson, supra, at 386-87.28

21 Before the trial began, Ake’s counsel withdrew their motion for a 
jury trial on the issue of competency. Tr. 3-4. But this did not 
diminish the court's obligation to inquire into the defendant's com­
petency if the circumstances warranted. Pate, 383 U.S. at 384-86; 
Drope, 420 U.S. at 176, 180.

Under Oklahoma law, a court is now authorized by statute “at any 
time [to] initiate a competency determination on its own motion,

45

II. Petitioner’s Competency To Stand Trial Cannot Be Sus­
tained On This Record.

One prominent side effect of Thorazine—observed in a 
majority of patients—is drowsiness or sedation. J . Neale & T. 
Oltmanns, Schizophrenia 412 (1980). While many patients de­
velop a tolerance for the sedative effects of the drug after 
several weeks, some do not; patients “are often seen to be 
docile, apathetic, and lackingin motivation.” T. DuQuesne & J. 
Reeves, A Handbook of Psychoactive Medicines 356 (1982). 
“[ E]ven typical therapeutic dosages may be highly sedating for 
several hours. This could cause problems at trial if the drugs 
were administered to the defendant on the typical three- or 
four-times-a-day schedule.” Winick, Psychotropic Medication 
and Competence to Stand Trial, 3 Am. Bar Foundation Re­
search J. 769, 783 (1977).

A closely related side effect is a patient’s subjective feeling 
of isolation and uninvolvement. He may feel “boredom, lethar­
gy, docility and purposelessness.” Comment, Madness and 
Medicine: The Forcible Administration of Psychotropic 
Drugs, 1980 Wise. L. Rev. 497, 512. Memory, reasoning abil­
ity, and mental speed may all be impaired. Id. As one former 
mental patient described his experience:

On Thorazine everything’s a bore. Not a bore exactly. 
Boredom implies impatience. You can read comic books 
and “Reader s Digest” forever. You can tolerate talking to 
jerks forever. Babble, babble, babble. The weather is 
dull, the flowers are dull, nothing’s very impressive. 
Muzak, Bach, Beatles, Lolly and the Yum-Yums, Rolling 
Stones. It doesn’t make any difference.

M. Vonnegut, The Eden Express 252-53 (1915).29 A defendant 
who is in a condition of such sedation, or of such unconcern

without an application, if the court has a doubt as to the competency 
of the [defendant]." Okla. Stat. tit. 22 § 1175.2 (1980). This statute 
became effective on June 25, 1980, while Ake s trial was underway.

»  This indifference to the outside world may be pronounced. In one 
study, rats that had been trained to climb a pole at the sound of a



46

about what is going on around him, can hardly “consult with 
counsel, and . . . assist in preparing his defense”—the minimal 
prerequisites of competency to stand trial. Drope v. Missouri, 
supra, at 171.

It has been suggested that “these problems could be elimi­
nated or reduced (without any loss of clinical benefit) by 
administering the total daily dose of the drug at bedtime.” 
Winick, supra, at 783.30 But this technique was not used here. 
Rather, Ake continued to receive his Thorazine three times a 
day throughout the trial, with evident sedative effects.

The State appellate court’s cursory rejection of Ake’s claim 
of incompetence is not dispositive, especially where, as here, it 
was based on sheer speculation. Rather, “it is ‘incumbent upon 
[this Court] to analyze the facts in order that the appropriate 
enforcement of the federal right may be assured.’ ” Drope v. 
Missouri, supra, at 175, quoting Norris v. Alabama, 294 U.S. 
587, 590 (1935). On this record, the Court of Criminal Appeals 
could not rationally have concluded that Ake’s competency at 
trial was established.

C. The Side Effects Of The Drug Administered To Petitioner 
Prejudiced Him Before The Jury.

Equally serious as the likelihood that Ake was incompetent 
to stand trial is the likelihood that Ake was prejudiced in the

buzzer in order to avoid an electric shock took no notice of the buzzer 
after being administered a very small dose of Thorazine. See R. 
Julien, A Primer of Ding Action 129 (1975).

30 Because Thorazine is intrinsically long-acting, there is “no clini­
cally significant difference in the therapeutic effect" between a single 
dose of 600 mg. at bedtime and doses of200 mgs. three times a day. G. 
Honigfeld & A. Howard, Psychiatric Drugs 24, 147 (2d ed. 1978). 
Even where competence to stand trial is not a concern, it is good 
medical practice, once the patient has been stabilized, to administer a 
single daily dose in the evening. L. Hollister, Clinical Pharmacology 
of Psychotherapeutic Drugs 162-63 (1978); E. Bassuk & S. Schoonov­
er, The Practitioner’s Guide to Psychoactive Drugs 118 (1977).

47

eyes of the jurors because of the effects of the Thorazine—at 
the cost of his life.

In addition to his sedated condition, some of the symptoms 
Ake apparently displayed at trial are among the common ex- 
trapyramidal (central nervous system) side effects of Thor­
azine treatment, known as parkinsonisms: muscular rigidity, a 
stooped posture, motor retardation, a “mask-like” face. T. 
DuQuesne & J. Reeves, A Handbook of Psychoactive Medi­
cines 357 (1982); In re Roe, supra, 421 N.E.2d at 53-54; In re 
K.K.B., 609 P.2d 747, 748 n.3 (Okla. 1980); 5 R. Herrington & 
M. Lader, Handbook of Biological Psychiatry 91 (1981). At 
the dosage level being administered to Ake, these side effects 
are observed in 15% to 25% of patients. Id.

Counsel’s references to Ake’s “zombie”-like appearance, 
J.A. 26, Tr. 659, 661, coincide precisely with the medical 
observations:

[0]ne should not only watch for the conventional parkinso­
nian symptoms . . . but also be aware that patients who 
appear apathetic, . . . lifeless, zombie-like, or drowsy, 
may be demonstrating subtle extrapyramidal side effects.

Davis, Antipsychotic Drugs, in 3 Comprehensive Textbook of 
Psychiatry 2257, 2281 (H. Kaplan, A. Freedman & B. Sadock 
3rd ed. 1980) (emphasis added).

[T]hese patients sometimes appear “zombie-like” because 
of the neurological side effects of these drugs.

One symptom that is often misperceived as evidence of 
psvchopathology is actually an extranvramidal side effect 
called akinesia, wherein the patient reels apathetic and is 
reluctant to move his body. This syndrome in fact may 
account for the “zombie” look frequently seen among pa­
tients at psychiatric hospitals.

G. Honigfeld & A. Howard, Psychiatric Drugs 16, 25 (2d ed.
1978) (emphasis added).'11

31 Just as there are clinical techniques that can be used to amelio­
rate the sedative effects of Thorazine, see n.30, supra, it is possible to



48

A defendant s appearance and demeanor in the courtroom 
are always an important part of his case. Criminal Defense 
Techniques § 24A.03[3] (S. Bernstein ed. 1983); F. Bailey & H. 
Rothblatt, F undamentals of Criminal Advocacy § 154 (1974). 
Cf. Estelle v. Williams, 425 U.S. 501, 504-05 (1976) (appear­
ance of defendant in prison garb “may affect a juror’s judg­
ment”). Never is this more true than where the defense is 
insanity. In such a case, the defendant’s appearance and de­
meanor is itself a matter of probative value for the jury:

[H]is deportment, demeanor and dav-to-day behavior 
during that trial, before their eyes, was a part of the basis 
ol their judgment with respect to the kind of person he 
really was, and the justifiability of his defense oi insanity.

InrePray, 133 Vt. 253, 336 A.2d 174, 177(1975). AccordState 
v. Maryott, 6 Wash. App. 96, 492 P.2d 239 (1971) (reversing 
conviction when defendant was administered tranquilizers 
during trial where his sanity was in issue).

The defendant’s appearance and demeanor are equally if not 
more important at the sentencing stage. In State v. Murphy 
56 Wash. 2d 761, 355 P.2d 323 (1960), a defendant in a capital 
case was granted a new trial because he had been tried in a 
drugged condition. The Murphy court recognized that the 
demeanor of a defendant could influence the jury in assessing 
whether to impose the death penalty:

the matter of the life or death of the accused may well 
depend upon the attitude, demeanor and appearance he

eliminate or reduce these extrapyramidal side effects by switching 
the patient from Thorazine to another psychoactive drug, or by 
administering anti-parkinsonian drugs. See Greenblatt, Shader & 
DiMascio, Extrapyramidal Effects, in Psychotropic Drug Side Ef­
fects 92, 94-95 (R. Shader & A. DiMascio eds. 1977); Hollister, Psy­
chopharmacology, in Schizophrenia: Science and Practice 152, 163 
(J. Shershow ed. 1978). The record indicates that these techniques 
were not attempted here. See J.A. 16. Had a psychiatrist been 
appointed to assist the defendant, he or she might have been able to 
suggest the use of such measures.

49

presents to the members of the jury. [This requires] care 
ful judicial scrutiny of every aspect of the trial afforded t( 
the accused to the end that a new trial be granted in the 
event of a showing by the accused of a reasonable possibil 
ity that his attitude, appearance, and demeanor, as ob­
served bv the jury, have been substantially influenced oi 
affected by circumstances over which he had no real con 
trol.

Id. at 327. Glen Ake’s “zombie-like” appearance before the jury 
while drugged denied him a fair chance for the jury to "assess 
[his] demeanor and character.” Chaffin v. Stynchcombe, 412 
U.S. 17,32(1973). Indeed, the Thorazine he was forced to take 
very likely prevented him from—or made him too lethargic or 
unconcerned to care about—testifying before the jury. See 
J.A. 55 (“We cannot get a yes or no if he wants to take the 
stand, so we rest.”).

In a capital case, the interest of society in bringing an ac­
cused person to trial, and the interest of the defendant in 
having an opportunity to establish his innocence, cannot justify 
the risk that a man will be sent to his death because the side 
effects of the drugs that are being administered to him without 
his consent have made the jury believe that he has no interest 
in his case, no remorse for his crime, and, perhaps, is a “zom­
bie” without a soul.



50

CONCLUSION

For the foregoing reasons, the judgment of the Oklahoma 
Court of Criminal Appeals should be reversed, and the case 
remanded for a new trial.

Of Counsel:
William B. Rogers 

ACLU of Oklahoma Foundation 
P.O. Box 799 
Oklahoma City, OK 73101

June, 1984

Respectfully submitted,
Arthur B. Spitzer 

Counsel of Record*
Elizabeth Symonds 

American Civil Liberties Union 
Fund of the National Capital Area 

600 Pennsylvania Avenue, S.E. 
Washington, D.C. 20003 
(202) 544-1076

Charles S. Sims 
Burt Neuborne 

American Civil Liberties Union 
Foundation, Inc.

132 West 43rd Street 
New York, N.Y. 10036

Deborah J. Staville 
10 West 15th Street 
New York, N.Y. 10011

* Counsel wish to acknowledge the research assistance of Susan 
Angell, Esq., in the preparation of this brief.

A P P E N D I X



la

APPENDIX
CONSTITUTIONAL AND STATUTORY PROVISIONS 

INVOLVED

The Fifth Amendment provides in pertinent part:
No person shall be * * * deprived of life, liberty, or prop­
erty, without due process of law * * *.
The Sixth Amendment provides in pertinent part:
In all criminal prosecutions, the accused shall enjoy the 
right * * * to be confronted with the witnesses against 
him; to have compulsory process for obtaining witnesses 
in his favor, and to have tne Assistance of Counsel for his 
defence.
The Eighth Amendment provides:
Excessive bail shall not be required, nor excessive fines 
imposed, nor cruel and unusual punishments inflicted.
The Fourteenth Amendment provides in pertinent part:
* * * No State shall * * * deprive any person of life, liber­
ty, or property, without due process of law; nor deny to 
any person within its jurisdiction the equal protection of 
the lawrs.
The laws of Oklahoma provide:

Okla. Stat. tit. 21 § 701.7 (1980): Murder in the first degree.
A. A person commits murder in the first degree when he 
unlawfully and with malice aforethought causes the death 
of another human being. Malice is that deliberate inten­
tion unlawfully to take awTay the life of a human being, 
which is manifested by external circumstances capable of 
proof.
B. A person also commits the crime of murder in the first 
degree when he takes the life of a human being, regardless 
of malice, in the commission of forcible rape, robbery with 
a dangerous w eapon, kidnapping, escape from lawful cus­
tody, first degree burglary or first degree arson.



*

2a

Okla. Stat. tit. 21 § 701.9 (1980): Punishment for murder.

A. A person who is convicted of or pleads eruilty or nolo 
contenoere to murder in the first degree shall be punished 
by death or by imprisonment for life.

Okla. Stat. tit. 21 § 701.10 (1980): Sentencing proceeding— 
Murder in the first degree.

Upon conviction or adjudication of guilt of a defendant of 
murder in the first degree, the court shall conduct a sepa­
rate sentencing proceeding to determine whether the de­
fendant should ne sentenced to death or life imprison­
ment. The proceeding shall be conducted by the trial judge 
before the trial jury as soon as practicable without pre­
sentence investigation. If the trial jury has been waived 
by the defendant and the state, or if the'defendant pleaded

fuilty or nolo contendere, the sentencing proceeding shall 
e conducted before the court. In the sentencing proceed­

ing, evidence may be presented as to any mitigating cir­
cumstances or as to any of the aggravating circumstances 
enumerated in this act. Only such evidence in aggravation 
as the state has made known to the defendant prior to his 
trial shall be admissible. However, this section shall not be 
construed to authorize the introduction of any evidence 
secured in violation of the Constitutions of the United 
States or of the State of Oklahoma. The state and the 
defendant or his counsel shall be permitted to present 
argument for or against sentence of death.

Okla. Stat. tit. 21 § 701.11 (1980): Instructions—Jury find­
ings of aggravating circumstance.

In the sentencing proceeding, the statutory instructions 
as determined by the trial judge to be warranted by the 
evidence shall be given in the charge and in writing to the 
jury for its deliberation. The jury, if its verdict be a 
unanimous recommendation of death, shall designate in 
writing, signed by the foreman of the jury, the statutory 
aggravating circumstance or circumstances which it 
unanimously found beyond a reasonable doubt. In non- 
jurv cases tnejudge shall make such designation. Unless 
at least one of the statutory aggravating circumstances 
enumerated in this act is so found or if it is found that any 
such aggravating circumstance is outweighed by the find­
ing of one or more mitigating circumstances, the death 
penalty shall not be imposed. If the jury cannot, within a

3a

reasonable time, agree as to punishment, the judge shall 
dismiss the jury and impose a sentence of imprisonment 
for life.

Okla. Stat. tit. 21 § 701.12 (1980): Aggravating circum­
stances.

Aggravating circumstances shall be:
1. The defendant was previously convicted of a felony 
involving the use or threat of violence to the person;
2. The defendant knowingly created a great risk of death 
to more than one person;

3. The person committed the murder for remuneration 
or the promise of remuneration or employed another 
to commit the murder for remuneration or the prom­
ise of remuneration;

4. The murder was especially heinous, atrocious, or 
cruel;

5. The murder was committed for the purpose of avoid­
ing or preventing a lawful arrest or prosecution;

6. The murder was committed by a person while serving 
a sentence of imprisonment on conviction of a felony;

7. The existence of a probability that the defendant 
would commit criminal acts of violence that would 
constitute a continuing threat to society; or

8. The victim of the murder was a peace officer as de­
fined by Section 99 of Title 21 of the Oklahoma Stat­
utes, or guard of an institution under the control of the 
Department of Corrections, and such person was kil­
led while in performance of official duty.

Okla. Stat. tit. 21 § 701.13 (1980): Death Penalty—Review of 
sentence

A. Whenever the death penalty is imposed, and upon the 
judgment becoming final in the trial court, the sentence 
shall be reviewed on the record by the Oklahoma Court of 
Criminal Appeals. The clerk of the trial court, within ten 
(10) days after receiving the transcript, shall transmit the 
entire record and transcript to the Oklahoma Court of 
Criminal Appeals together with a notice prepared by the 
clerk and a report prepared by the trial judge. The notice



4*

4a

shall set forth the title and docket number of the case, the 
name of the defendant and the name and address of his 
attorney, a narrative statement of thejudgment, the 
offense, and the punishment prescribed. The report shall 
be in the form oi a standard questionnaire prepared and 
supplied by the Oklahoma Court of Criminal Appeals.
B. The Oklahoma Court of Criminal Appeals shall con­
sider the punishment as well as any errors enumerated by 
way of appeal.
C. With regard to the sentence, the court shall deter­
mine:

1. Whether the sentence of death was imposed under 
the influence of passion, prejudice, or any other arbitrary 
factor;

2. Whether the evidence supports the jury’s or judge’s 
finding of a statutory aggravating circumstance as 
enumerated in this act; and

3. Whether the sentence of death is excessive or dis­
proportionate to the penalty imposed in similar cases, 
considering both the crime and tne defendant.
D. Both the defendant and the state shall have the right 
to submit briefs within the time provided by the court, and 
to present oral argument to the court.
E. The court shall include in its decision a reference to 
those similar cases which it took into consideration. In 
addition to its authority regarding correction of errors, 
the court, with regard to review ofdeath sentences, shall 
be authorized to:

1. Affirm the sentence of death; or
2. Set the sentence aside and remand the case for 

modification of the sentence to imprisonment for life.
F. The sentence review shall be in addition to direct 
appeal, if taken, and the review and appeal shall be con­
solidated for consideration. The court snail render its deci­
sion on legal errors enumerated, the factual substantia­
tion of the verdict, and the validity of the sentence.

5a

Okla. Stat. tit. 21 § 701.14 (1980): Appointment of counsel— 
Fees.

In all cases, wherein the defendant is subject to the death 
penalty triable in the State of Oklahoma, where it is 
satisfactorily shown to the trial court that the defendant 
has no means and is unable to employ counsel, the court 
shall, in all such cases, where counsel is appointed and 
assigned for defense, allow and direct to be paid from the 
State Judicial Fund, a reasonable and just compensation 
to the attorney so assigned for such services as they may 
render such compensation being allowable in any court of 
record. Provided, however, that such attorney shall not 
be paid a sum to exceed Two Thousand Five Hundred 
Dollars ($2,500.00) in any one case, the specific amount to 
be left to the discretion of the trial judge.

Okla. Stat. tit. 20 § 1304 (1980): Claims allowable— 
Approval—Limitation on courthouse building.

(a) Claims against the court fund shall include only such 
expenses as may be lawfully incurred for the operation of 
the court in the county.* * *
(b) The term “expenses” shall include the following 
items and none others:
jH %

(3) juror and witness fees * * * except that expert 
witnesses who appear on behalf of the State of Oklahoma 
shall be paid a reasonable fee for their services from the 
court fund;
*  *  *

(8) attorney’s fees for indigents in the trial court and 
on appeal;
* * *



—
I_

__
_I

f

6 a

Okla. Stat. tit. 22 § 1171 (1971): Doubt as to present sanity 
prior to calling of indictment or information for trial or 
preliminary hearing.*

If any person is held in confinement because of criminal 
charges, or if he has criminal charges pending or likely to 
be filed against him, or if he has been taken into custody 
because of a criminal act or acts, and prior to the calling of 
an indictment or information for trial or preliminary hear­
ing, a doubt arises as to his present sanity, either such 
individual or the district attorney may make' application to 
the District Court for an order committing such individual 
to a state hospital within the Department of Mental 
Health for observation and examination for a period not to 
exceed sixty (60) days. Provided, however, where an ade­
quate examination can be had in the county where the 
charge is pending, such examination shall be'held in such 
county. Provided, however, the court may extend the 
sixty-day period where a need for such'extension is 
shown. Any criminal proceedings against such individual 
shall be suspended pending the nearing of the application 
by the District Court.

*Repealed by Laws 1980, c. 336, § 10, effective June 25. 1980. 
Replaced by Okla. Stat. tit. 22 §§ 1175.1 to 1175.8 (1980), effective 
June 25, 1980. - si ..:■ • . . . ; •% \  - - ■

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